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LINCOLN  ROOM 

UNIVERSITY  OF  ILLINOIS 
LIBRARY 


MEMORIAL 

the  Class  of  1901 


(PIS' 


53 


THE 


War  Powers  of  the  President, 


AND    THE 


LEGISLATIVE  POWERS  OF  CONGRESS 


IN    RELATION    TO 


irni,  Crason  an&  J 


BY   WILLIAM   WHITING, 

d.  c  ftf  ^-  ;  J  '-'f}wJL  -*~4*n-  ' 


SIXTH    EDITION, 
PUBLISHED   FOR  THE   EMANCIPATION   LEAGUE. 


BOSTON.  , 

JOHN     L.     SHOKEY, 

13    WASHINGTON     STREET. 

1863. 


NOTICE. 

THIS  edition  of  the  War  Powers  is  published  by  the  Emancipation  League 
fjr  gratuitous  distribution,  under  the  impression  that  a  more  extended  cir- 
culation of  the  pamphlet  might  be  productive  of  great  good. 

For  the  free  use  of  the  plates  the  gentlemen  composing  the  League  de- 
sire to  express  their  gratitude  to  Mr.  WHITING  ;  and  they  would  thank  him, 
in  the  name  of  the  Country,  for  that  patriotic  devotion  to  the  cause  of  hu- 
man rights,  and  of  American  liberty,  which  has  stimulated  him  to  divert 
from  active  and  lucrative  professional  pursuits  the  time  and  toil  evident  in 
the  preparation  of  a  work  of  so  much  legal  research  and  reflection  as  that 
hers  given  to  the  public.  Let  it  be  passed  from  hand  to  hand  like  a  torch, 
to  illumine  the  dark  places  of  the  present  crisis  in  our  affairs. 


Entered,  according  to  Act  of  Congress,  in  the  year  18f>2,  by 

WILLIAM   WHITING, 
In  the  Clerk's  Office  of  tha  District  Court  of  the  District  of  Massachusetts. 


PRINTED   BY 
GEORGE    C.    RAND    Si    AVERT. 


PREFACE  TO  THE  SECOND  EDITION. 


WAR  POWERS  OF  THE  PRESIDENT,  AND  LEGISLATIVE  POW- 
ERS OF  CONGRESS,  IN  RELATION  TO  REBELLION,  TREASON, 
AND  SLAVERY. 

THE  following  pages  were  not  originally  intended  for  publica- 
tion, but  were  written  by  the  author  for  his  private  use.  He  has 
printed  them  at  the  request  of  a  few  friends,  to  whom  the  opinions 
therein  expressed  had  been  communicated ;  and  he  is  not  unaware 
of  sevei-al  errors  of  the  press,  and  of  some  inaccuracies  of  expres- 
sion, which,  in  one  or  two  instances,  at  least,  modify  the  sense  of 
the  statements  intended  to  be  made.  The  work  having  been 
printed,  such  errors  can  conveniently  be  corrected  only  in 
the  "errata"  This  publication  was  principally  written  in  the 
spring  of  1862,  the  chapter  on  the  operation  of  the  Confiscation 
Act  of  July  17th,  1862,  having  been  subsequently  added.  Since 
that  time  President  Lincoln  has  issued  his  Emancipation  Procla- 
mation, and  several  military  orders,  operating  in  the  Free  States, 
under  which  questions  have  arisen  of  the  gravest  importance. 
The  views  of  the  author  on  these  subjects  have  been  expressed 
in  several  recent  public  addresses ;  and,  if  circumstances  permit, 
these  subjects  may  be  discussed  in  a  future  addition  to  this 
pamphlet. 

To  prevent  misunderstanding,  the  learned  reader  is  requested  ' 
to  observe  the  distinction  between  emancipating  or  confiscating 
slaves,  and  abolishing  the  laws  which  sustain  slavery  in  the  Slave 

(1) 


PREFACE. 

States.  The  former  merely  takes  away  slaves  from  the  possession 
and  control  of  their  masters ;  the  latter  deprives  the  inhabitants 
of  those  States  of  the  lawful  right  of  obtaining,  by  purchase  or 
otherwise,  or  of  holding  slaves.  Emancipation  or  confiscation 
operates  only  upon  the  slaves  personally;  but  a  law  abolishing 
the  right  to  hold  slaves,  in  the  Slave  States,  operates  on  all  citizens 
residing  there,  and  effects  a  change  of  local  law.  If  all  the  horses 
now  in  Massachusetts  were  to  be  confiscated,  or  appropriated  by 
government  to  public  use,  though  this  proceeding  would  change 
the  legal  title  to  these  horses,  it  would  not  alter  the  laws  of  Mas- 
sachusetts as  to  personal  property;  nor  would  it  deprire  our 
citizens  of  the  legal  right  to  purchase  and  use  other  horses. 

The  acts  for  confiscation  or  emancipation  of  enemy's  slaves, 
and  the  President's  Proclamation  of  the  22d  of  September,  do 
not  abolish  slavery  as  a  legal  institution  in  the  States  ;  they  act 
upon  persons  held  as  slaves ;  they  alter  no  local  laws  in  any  of 
the  States ;  they  do  not  purport  to  render  slavery  unlawful ;  they 
merely  seek  to  remove  slaves  from  the  control  of  rebel  masters. 
If  slavery  shall  cease  by  reason  of  the  legal  emancipation  of 
slaves,  it  will  be  because  slaves  are  removed;  nevertheless,  the 
laws  that  sanction  slavery  may  remain  in  fall  force.  The  death 
of  all  the  negroes  on  a  plantation  would  result  in  a  total  loss  to 
the  owner  of  so  much  "property;"  but  that  loss  would  not  pre- 
vent the  owner  from  buying  other  negroes,  and  holding  them  by 
slave  laws.  Death  does  not  interfere  with  the  local  law  of  prop- 
erty. Emancipation  and  confiscation,  in  like  manner,  do  not 
necessarily  interfere  with  local  law  establishing  slavery. 

The  right  to  liberate  slaves,  or  to  remove  the  condition  or  status 
of  slavery,  as  it  applies  to  all  slaves  living  at  any  one  time,  or  the 
right  to  abolish  slavery  in  the  sense  of  liberating  all  existing 
slaves,  is  widely  different  and  distinct  from  the  right  of  repealing 
or  annulling  the  laws  of  States  which  sanction  the  holding  of 
slaves.  State  slave  laws  may  or  may  not  be  beyond  the  reach 
of  the  legislative  powers  of  Congress ;  but  if  they  are,  that  fact 


PREFACE.  Ill 

would  not  determine  the  question  as  to  the  right  to  emancipate, 
liberate,  or  to  change  the  relation  to  their  masters  of  slaves  now 
living  /  nor  the  question  as  to  the  right  of  abolishing  slavery,  in 
the  sense  in  which  this  expression  is  used  when  it  signifies 
the  liberation  of  persons  now  held  as  slaves,  from  the  operation 
of  slave  laws ;  while  these  laws  are  still  left  to  act  on  other  per- 
sons who  may  be  hereafter  reduced  to  slavery  under  them. 

It  is  not  denied  that  the  powers  given  to  the  various  depart- 
ments of  government  are  in  general  limited  and  defined ;  nor  is 
it  to  be  forgotten  that  "the  powers  not  delegated  to  the  United 
States  by  the  constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people."  (Const. 
Amendment,  Art.  X.)  But  the  powers  claimed  for  the  President 
and  for  Congress,  in  this  essay,  are  believed  to  be  delegated  to 
them  respectively  under  the  constitution,  expressly  or  by  neces- 
sary implication. 

The  learned  reader  will  also  notice,  that  the  positions  taken  in 
this  pamphlet  do  not  depend  upon  the  adoption  of  the  most  liberal 
construction  of  the  constitution,  Art.  I.  Sect.  8,  Cl.  l,which  is  deemed 
by  eminent  statesmen  to  contain  a  distinct,  substantive  power  to 
pass  all  laws  which  Congress  shall  judge  expedient  "  to  provide  for 
the  common  defence  and  general  welfare"  This  construction  was 
held  to  be  the  true  one  by  many  of  the  original  framers  of  the 
constitution  and  their  associates  ;  among  them  was  George  Mason 
of  Virginia,  who  opposed  the  adoption  of  the  constitution  in  the 
Virginia  convention,  because,  among  other  reasons,  he  considered 
that  the  true  construction.  (See  Elliott's  Debates,  vol.  ii.  327, 328.) 
Thomas  Jefferson  says,  (Jefferson's  Correspondence,  vol.  iv.  p.  306,) 
that  this  doctrine  was  maintained  by  the  Federalists  as  a  party, 
while  the  opposite  doctrine  was  maintained  by  the  Republicans 
as  a  party.  Yet  it  is  true  that  several  Federalists  did  not  adopt 
that  view,  but  Washington,  Adams,  Jefferson,  Madison,  Monroe, 
Hamilton,  Mason,  and  others,  were  quite  at  variance  as  to  the 
true  interpretation  of  that  much  contested  clause.  Southern 


IV  PREFACE. 

statesmen,  drifting  towards  the  state-rights  doctrines,  as  time 
passed  on,  have  generally  adopted  the  strictest  construction  of 
the  language  of  that  clause ;  but  it  has  not  yet  been  authorita- 
tively construed  by  the  Supreme  Court.  Whatever  may  be  the 
extent  or  limitation  of  the  power  conveyed  in  this  section,  it  is 
admitted  by  all  that  it  contains  the  power  of  imposing  taxes  to 
an  unlimited  amount,  and  the  right  to  appropriate  the  money  so 
obtained  to  "  the  common  defence  and  public  welfare."  Thus  it 
is  obvious,  that  the  right  to  appropriate  private  property  to  public 
use,  and  to  provide  compensation  therefor,  as  stated  in  Chap- 
ter I. ;  the  power  of  Congress  to  confiscate  enemy's  property  as 
a  belligerent  right ;  the  power  of  the  President,  as  commander-in- 
chief,  as  an  act  of  war,  to  emancipate  slaves ;  or  the  power  of 
Congress  to  pass  laws  to  aid  the  President,  in  executing  his  mili- 
tary duties,  by  abolishing  slavery,  or  emancipating  slaves,  under 
Art.  I.  Sect.  8,  Cl.  18,  as  war  measures,  essential  to  save  the 
country  from  destruction,  do  not  depend  upon  the  construction 
given  to  the  disputed  clause  above  cited. 

It  will  also  be  observed,  that  a  distinction  is  pointed  out  in 
these  pages  between  the  legislative  powers  of  Congress,  in  time 
of  peace,  and  in  time  of  war.  Whenever  the  words  "  the  common 
defence  "  are  used,  they  are  intended  to  refer  to  a  time,  not  of  con- 
structive war,  but  of  actual  open  hostility,  which  requires  the 
nation  to  exert  its  naval  and  military  powers  in  self-defence,  to 
save  the  government  and  the  country  from  destruction. 

The  Introduction,  and  Chapters  I.  and  VIII.,  shoiild  be  read  in 
connection,  as  they  relate  to  the  same  subject;  and  the  reader  will 
bear  in  mind  that,  in  treating  of  the  powers  of  Congress  in  the 
first  chapter,  it  is  not  asserted  that  Congress  have,  without  any 
public  necessity  jiistifying  it,  the  right  to  appropriate  private  prop- 
erty of  any  kind  to  public  use.  There  must  always  be  a  justifia- 
ble cause  for  the  exercise  of  every  delegated  power  of  legislation. 

It  is  not  maintained  in  these  pages  that  Congress,  in  time  of 
peace,  has  the  right  to  abolish  slavery  in  the  States,  by  passing 


PREFACE.  V 

laws  rendering  the  holding  of  any  slaves  therein  illegal,  so  long  as 
slavery  is  merely  a  household  or  family,  or  domestic  institution  • 
and  so  long  as  its  existence  and  operation  are  confined  to  the 
States  where  it  is>  found,  and  concern  exclusively  the  domestic 
affairs  of  the  Slav'e  States ;  and  so  long  as  it  does  not  conflict 
with  or  affect  the  rights,  interests,  duties,  or  obligations  which 
appertain  to  the  affairs  of  the  nation,  nor  impede  the  execution 
of  the  laws  and  constitution  of  the  United  States,  nor  con- 
flict with  the  rights  of  citizens  under  them.  Yet  cases  might 
arise  in  which,  in  time  of  peace,  the  abolishment  of  slavery 
might  be  necessary,  and  therefore  would  be  lawful,  in  order  to 
enable  Congress  to  cany  into  effect  some  of  the  express  pro- 
visions of  the  constitution,  as  for  example,  that  contained  in  Art. 
IV.  Sect.  4,  01.  1,  in  which  the  United  States  guarantee  to  every 
State  in  this  Union  a  republican  form  of  government ;  or  that 
contained  in  Art.  IV.  Sect.  2,  01.  1,  which  provides  that  citizens 
of  each  State  shall  be  entitled  to  all  the  privileges  and  immuni- 
ties of  citizens  in  the  several  States. 

It  is  asserted  in  this  essay  that,  when  the  institution  of  slavery 
no  longer  concerns  only  the  household  or  family,  and  no  longer 
continues  to  be  a  matter  exclusively  appertaining  to  the  domestic 
affairs  of  the  State  in  which  it  exists ;  when  it  becomes  a  potent, 
operative,  and  efficient  instrument  for  carrying  on  war  against  the 
Union,  and  an  important  aid  to  the  public  enemy;  when  it 
opposes  the  national  military  powers  now  involved  in  a  gigan- 
tic rebellion ;  when  slavery  has  been  developed  into  -a  vast, 
an  overwhelming  war  power,  which  is  actually  used  by  armed 
traitors  for  the  overthrow  of  government  and  of  the  constitu- 
tion ;  when  it  has  become  the  origin  of  civil  war,  and  the 
means  by  which  hostilities  are  maintained  in  the  deadly  struggle 
of  the  Union  for  its  own  existence;  when  a  local  institution 
is  perverted  so  as  to  compel  three  millions  of  loyal  colored  sub- 
jects to  become  belligerent  traitors  because  they  are  held  as 
slaves  of  disloyal  masters,  —  then  indeed  slavery  has  become  an 


VI  PREFACE. 

affair  most  deeply  affecting  the  national  welfare  and  common 
defence,  and  has  subjected  itself  to  the  severest  enforcement  of 
those  legislative  and  military  powers,  to  which  alone,  under 
the  constitution,  the  people  must  look  t<j  save  themselves 
from  ruin.  In  the  last  extremity  of  our  contest,  the  ques- 
tion must  be  decided  whether  slavery  shall  be  rooted  up 
and  extirpated,  or  our  beloved  country  be  torn  asunder  and 
given  up  to  our  conquerors,  our  Union  destroyed,  and  our  people 
dishonored?  Are  any  rights  of  property,  or  any  claims,  which 
one  person  can  assume  to  have  over  another,  by  whatever  local 
law  they  may  be  sanctioned,  to  be  held,  by  any  just  construction  of 
the  constitution,  as  superior  to  the  nation's  right  of  self-defence  ? 
And  can  the  local  usage  or  law  of  any  section  of  this  country 
override  and  break  down  the  obligation  of  the  people  to  maintain 
and  perpetuate  their  own  government?  Slavery  is  no  longer 
local  or  domestic  after  it  has  become  an  engine  of  war.  The 
country  demands,  at  the  hands  of  Congress  and  of  the  President, 
the  exercise  of  every  power  they  can  lawfully  put  forth  for  its 
destruction,  not  as  an  object  of  the  war,  but  as  a  means  of  termi- 
nating the  rebellion,  if  by  destroying  slavery  the  republic  may  be 
saved.  These  considerations  and  others  have  led  the  author  to 
the  conclusion  stated  in  the  following  pages,  "that  Congress 
has  the  right  to  abolish  slavery,  when  in  time  of  war  its  abolish- 
ment is  necessary  to  aid  the  commander-in-chief  in  maintaining 
the  '•common  defence?"  -™-  ™- 


OF   THE 


UNITED  STATES  OF  AMERICA. 


INTRODUCTION. 


THE  PUEPOSE  FOR  WHICH  IT  WAS  FOUNDED. 

THE  Constitution  of  the  United  States,  as  declared  in 
the  preamble,  was  ordained  and  established  by  the 
people,  "  in  order  to  form  a  more  perfect  union,  estab- 
lish justice,  insure  domestic  tranquillity,  provide  for  the 
common  defence,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  themselves  and  their 
posterity." 

HOW  IT  HAS  BEEN  VIOLATED. 

A  handful  of  slave-masters  have  broken  up  that  Union, 
have  overthrown  justice,  and  have  destroyed  domestic 
tranquillity.  Instead  of  contributing  to  the  common 
defence  and  public  welfare,  or  securing  the  blessings  of 
liberty  to  themselves  and  their  posterity,  they  have 
waged  war  upon  their  country,  and  have  attempted  to 
establish,  over  the  ruins  of  the  Kepublic,  an  aristocratic 
government  founded  upon  Slavery. 


4  CONSTITUTION    OF   THE   UNITED    STATES. 

"THE   INSTITUTION"  vs.  THE   CONSTITUTION. 

It  is  the  conviction  of  many  thoughtful  persons,  that 
slavery  has  now  become  practically  irreconcilable  with 
republican  institutions,  and  that  it  constitutes,  at  the 
present  time,  the  chief  obstacle  to  the  restoration  of 
the  Union.  They  know  that  slavery  can  triumph  only 
by  overthrowing  the  republic;  they  believe  that  the 
republic  can  triumph  only  by  overthrowing  slavery, 

»  THE  PRIVILEGED  CLASS." 

Slaveholding  communities  constitute  the  only  u privi- 
leged class "  of  persons  who  have  been  admitted  into  the 
Union.  They  alone  have  the  right  to  vote  for  their 
property  as  well  as  for  themselves.  In  the  free  States 
citizens  vote  only  for  themselves.  The  former  are 
allowed  to  count,  aS  part  of  their  representative  num- 
bers, three  fifths  of  all  slaves.  If  this  privilege,  which 
was  accorded  only  to  the  original  States,  had  not  been 
extended  (contrary,  as  many  jurists  contend,  to  the 
true  intent  and  meaning  of  the  constitution)  so  as  to 
include  other  States  subsequently  formed,  the  stability 
of  government  would  not  have  been  seriously  endan- 
gered by  the  temporary  toleration  of  this  "  institution," 
although  it  was  inconsistent  with  the  principles  which 
that  instrument  embodied,  and  revolting  to  the  senti- 
ments cherished  by  a  people  who  had  issued  to  the 
world  the  Declaration  of  Independence,  and  had  fought 
through  the  revolutionary  war  to  vindicate  and  main- 
tain the  rights  of  man. 

UNEXPECTED  GROWTH   OF  SLAVERY. 

The  system  of  involuntary  servitude,  which  had 
received,  as  it  merited,  the  general  condemnation  of 


INTRODUCTION.  5 

the  leading  southern  and  northern  statesmen  of  the 
country,  —  of  those  who  were  most  familiar  with  its 
evils,  and  of  all  fair-minded  persons  throughout  the 
world,  —  seemed,  at  the  time  when  our  government  was 
founded,  about  to  vanish  and  disappear  from  this  conti- 
nent, when  the  spinning  jenny  of  Crompton,  the  loom 
of  Wyatt,  the  cotton  gin  of  Whitney,  and  the  manu- 
facturing capital  of  England,  combined  to  create  a  new 
and  unlimited  demand  for  that  which  is  now  the  chief 
product  of  southern  agriculture.  Suddenly,  as  if  by 
magic,  the  smouldering  embers  of  slavery  were  rekin- 
dled, and  its  flames,  like  autumnal  fires  upon  the 
prairies,  have  rapidly  swept  over  and  desolated  the 
southern  states;  and,  as  that  local,  domestic  institution, 
which  seemed  so  likely  to  pass  into  an  ignominious  and 
unlamented  grave,  has  risen  to  claim  an  unbounded 
empire,  hence  the  present  generation  is  called  upon  to 
solve  questions  and  encounter  dangers  not  foreseen  by 
our  forefathers. 

SLAVERY  ABOLISHED  BY   EUROPEAN   GOVERNMENTS. 

In  other  countries  the  scene  has  been  reversed. 
France,  with  unselfish  patriotism,  abolished  slavery  in 
1794;  and  though  Napoleon  afterwards  reestablished 
servitude  in  most  of  the  colonies,  it  was  finally  abolished 
in  1848.  England  has  merited  and  received  her  highest 
tribute  of  honor  from  the  enlightened  nations  of  the 
world  for  that  great  act  of  Parliament  in  1833,  whereby 
she  proclaimed  universal  emancipation. 

In  1844,  King  Oscar  informed  the  Swedish  states  of 
his  desire  to  do  away  with  involuntary  servitude  in  his 
dominions;  in  1846  the  legislature  provided  the  pecu- 


6  CONSTITUTION    OF   THE   UNITED    STATES. 

niary  means  for  carrying  that  measure  into  effect ;  and 
now  all  the  slaves  have  become  freemen. 

Charles  VIII.,  King  of  Denmark,  celebrated  the  anni- 
versary of  the  birth  of  the  Queen  Dowager  by  abol- 
ishing slavery  in  his  dependencies,  on  the  28th  of 
July,  1847. 

In  1862,  Russiahas  consummated  the  last  and  grandest 
act  of  emancipation  of  modern  times.* 

While  Europe  has  thus  practically  approved  of  the 
leading  principle  of  'the  American  constitution,  as 
founded  on  justice,  and  as  essential  to  public  welfare, 
the  United  States,  as  represented  by  the  more  recent  ad- 
ministrations, have  practically  repudiated  and  abandoned 
it.  Europe,  embarrassed  by  conservative  and  monar- 
chical institutions,  adopts  the  preamble  to  that  instru- 
ment, as  a  just  exposition  of  the  true  objects  for  which 
governments  should  be  established,  and  accordingly 
abolishes  slavery  —  while,  in  this  country,  in  the  mean 
time,  slavery,  having  grown  strong,  seeks  by  open  rebel- 
lion to  break  up  the  Union,  and  to  abolish  republican  de- 
mocracy. 

SLAVEKT  IN  1802  NOT  SLAVERY  IN  1788. 

However  harmless  that  institution  may  have  been  in 
1788,  it  is  now  believed  by  many,  that,  with  few  but 
honorable  exceptions,  the  slave-masters  of  the  present 
day,  the  privileged  class,  cannot,  or  will  not,  conduct  them- 
selves so  as  to  render  it  longer  possible,  by  peaceable 
association  with  them,  to  preserve  "  the  Union,"  to 
*  establish  justice,"  u  insure  domestic  tranquillity,  the 
general  welfare,  the  common  defence,  or  the  blessings 
of  liberty  to  ourselves  or  our  posterity."  And  since  the 
wide-spread  but  secret  conspiracies  of  traitors  in  the 

*  To  the  above  examples  we  must  add  that  of  the  Dutch  West  Indies, 
•where  the  law  emancipating  the  slaves  goes  into  operation  in  July,  1863. 


INTRODUCTION.  7 

slave  states  for  the  last  thirty  years ;  their  hatred  of  the 
Union,  and  determination  to  destroy  it;  their  abhor- 
rence of  republican  institutions,  and  of  democratic 
government ;  their  preference  for  an  "  oligarchy  with 
slavery  for  its  corner  stone,"  have  become  known  to  the 
people,  —  their  causeless  rebellion  ;  their  seizure  of  the 
territory  and  property  of  the  United  States ;  their  siege 
of  Washington;  their  invasion  of  States  which  have 
refused  to  join  them ;  their  bitter,  ineradicable,  and 
universal  hatred  of  the  people  of  the  free  States,  and 
of  all  who  are  loyal  to  the  government,  have  produced 
a  general  conviction  that  slavery  (which  alone  has 
caused  these  results,  and  by  which  alone  the  country 
has  been  brought  to  the  verge  of  ruin)  must  itself  be 
terminated;  and  that  this  "privileged  class  "  must  be  abol- 
ished;  otherwise  the  unity  of  the  American  people  must 
be  destroyed,  the  government  overthrown,  and  consti- 
tutional liberty  abandoned. 

To  secure  domestic  tranquillity  is  to  make  it  certain 
by  controlling  power.  It  cannot  be  thus  secured  while 
a  perpetual  uncontrollable  cause  of  civil  war  exists. 
The  cause,  the  means,  the  opportunity  of  civil  war  must 
be  removed ;  the  perennial  fountain  of  all  our  national 
woes  must  be  destroyed  ;  otherwise  "  it  will  be  in  vain 
to  cry,  Peace !  peace !  There  is  no  peace." 

ARE  SLAVEHOLDERS  ARBITERS  OF  PEACE  AXD  WAR? 

Is  the  Union  so  organized  that  the  means  of  involving 
the  whole  country  in  ruin  must  be  left  in  the  hands  of 
a  small  privileged  class,  to  be  used  at  their  discretion  ? 
Must  the  blessing  of  peace  and  good  government  be 
dependent  upon  the  sovereign  will  and  pleasure  of  a 
handful  of  treasonable  and  unprincipled  slave-masters  ? 


8  CONSTITUTION   OF   THE   UNITED    STATES. 

Has  the  constitution  bound  together  the  peaceable 
citizen  with  the  insane  assassin,  so  that  his  murderous 
knife  cannot  lawfully  be  wrenched  from  his  grasp  even 
in  self-defence  ? 

.  If  the  destruction  of  slavery  be  necessary  to  save 
the  country  from  defeat,  disgrace,  and  ruin,  — and  if,  at 
the  same  time,  the  constitution  guarantees  the  perpe- 
tuity of  slavery,  whether  the  country  is  saved  or  lost, 
—  it  is  time  that  the  friends  of  the  government  should 
awake,  and  realize  their  awful  destiny.  If  the  objects 
for  which  our  government. was  founded  can  lawfully  be 
secured  only  so  far  as  they  do  not  interfere  with  the 
pretensions  of  slavery,  we  must  admit  that  the  inter- 
ests of  slave-masters  stand  first,  and  the  welfare  of  the 
people  of  the  United  States  stands  last,  under  the 
guarantees  of  the  constitution.  If  the  Union,  the  con- 
stitution, and  the  laws,  like  Laocoon  and  his  sons,  are 
to  be  strangled  and  crushed,  in  order  that  the  unre- 
lenting serpent  may  live  in  triumph,  it  is  time  to 
determine  which  of  them  is  most  worthy  to  be  saved. 
Such  was  not  the  Union  formed  by  our  forefathers. 
Such  is  not  the  Union  the  people  intend  to  preserve. 
They  mean  to  uphold  a  Union,  under  the  constitution, 
interpreted  by  common  sense  •  a  government  able  to  attain 
results  worthy  of  a  great  and  free  people,  and  for  which 
it  was  founded;  a  republic,  representing  the  sovereign 
majesty  of  the  whole  nation,  clothed  with  ample  powers 
to  maintain  its  supremacy  forever.  They  mean  that 
liberty  and  union  shall  be  "  one  and  inseparable." 

WHY  SLAVERY,  THOUGH  HATED,  WAS  TOLERATED. 

It  is  true,  that  indirectly,  and  for  the  purpose  of  a  more 
equal  distribution  of  direct  taxes,  the  framers  of  the  con- 


INTRODUCTION.  9 

jr 

stitution  tolerated,  while  they  condemned  slavery;  but 
they  tolerated  it  because  they  believed  that  it  would 
soon  disappear.  They  even  refused  to  allow  the  char- 
ter of  their  own  liberties  to  be  polluted  by  the  mention 
of  the  word  "  slave."  Having  called  the  world  to  witness 
their  heroic  and  unselfish  sacrifices  for  the  vindication 
of  their  own  inalienable  rights,  they  could  not,  con- 
sistently with  honor  or  self-respect,  transmit  to  future 
ages  the  evidence  that  some  of  them  had  trampled 
upon  the  inalienable  rights  of  others. 

RECOGNITION    OF    SLAVERY    NOT    INCONSISTENT    WITH    THE    PERPE- 
TUITY   OF  THE   REPUBLIC. 

Though  slavery  was  thus  tolerated  by  being  ignored, 
we  should  dishonor  the  memory  of  those  who  organized 
that  government  to  suppose  that  they  did  not  intend 
to  bestow  upon  it  the  power  to  maintain  its  own 
authority  —  the  right  to  overthrow  or  remove  slavery, 
or  whatever  might  prove  fatal  to  its  permanence,  or 
destroy  its  usefulness.  We  should  discredit  the  good 
sense  of  the  great  people  who  ordained  and  established 
it,  to  deny  that  they  bestowed  upon  the  republic,  cre- 
ated by  and  for  themselves,  the  right,  the  duty,  and  the 
powers  of  self-defence.  For  self-defence  by  the  govern- 
ment was  only  maintaining,  through  the  people's  agents, 
the  right"  of  the  people  to  govern  themselves. 

DISTINCTION  BETWEEN  THE  OBJECTS  AND  THE  MEANS  OF  WAR. 

We  are  involved  in  a  war  of  self-defence. 

It  is  not  the  object  and  purpose  of  our  hostilities  to 
lay  waste  lands,  burn  bridges,  break  up  railroads, 
sink  ships,  blockade  harbors,  destroy  commerce,  cap- 
ture, imprison,  wound,  or  kill  citizens ;  to  seize,  appro- 
2 


10  CONSTITUTION   OF   THE   UNITED    STATES. 

priate,  confiscate,  or  destroy  private  property;  to 
interfere  with  families,  or  domestic  institutions;  to 
remove,  employ,  liberate,  or  arm  slaves ;  to  accumu- 
late national  debt,  impose  new  and  burdensome  taxes ; 
or  to  cause  thousands  of  loyal  citizens  to  be  slain  in 
battle.  But,  as  means  of  carrying  on  the  contest,  it  has  be- 
come necessary  and  lawful  to  lay  waste,  burn,  sink,  de- 
stroy, blockade,  wound,  capture,  and  kill ;  to  accumulate 
debt,  lay  taxes,  and  expose  soldiers  to  the  peril  of  deadly 
combat.  Such  are  the  ordinary  results  and  incidents  of 
war.  If,  in  further  prosecuting  hostilities,  the  liberating, 
employing,  or  arming  of  slaves  shall  be  deemed  con- 
venient for  the  more  certain,  speedy,  and  effectual  over- 
throw of  the  enemy,  the  question  will  arise,  whether 
the  constitution  prohibits  those  measures  as  acts  of 
legitimate  war  against  rebels,  who,  having  abjured  that 
constitution  and  having  openly  in  arms  defied  the  gov- 
ernment, claim  for  themselves  only  the  rights  of  bel- 
ligerents. 

It  is  fortunate  for  America  that  securing  the  liberties 
of  a  great  people  by  giving  freedom  to  four  millions  of 
bondmen  would  be  in  accordance  with  the  dictates  of 
justice  and  humanity.  If  the  preservation  of  the  Union 
required  the  enslavement  of  four  millions  of  freemen, 
very  different  considerations  would  be  presented. 

LIBERAL  AND  STRICT  CONSTRUCTIONISTS. 

The  friends  and  defenders  of  the  constitution  of  the 
United  States  of  America,  ever  since  its  ratification, 
have  expressed  widely  different  opinions  regarding  the 
limitation  of  the  powers  of  government  in  time  of 
peace,  no  less  than  in  time  of  war.  Those  who  have 
contended  for  the  most  narrow  and  technical  construe- 


INTRODUCTION.  11 

tion,  having  stuck  to  the  letter  of  the  text,  and  not 
appreciating  the  spirit  in  which  it  was  framed,  are 
opposed  to  all  who  view  it  as  only  a  frame  of  gov- 
ernment, a  plan-in-outline,  for  regulating  the  affairs  of  an 
enterprising  and  progressive  nation.  Some  treat  that 
frame  of  government  as  though  it  were  a  castriron 
mould,  incapable  of  adaptation  or  alteration  —  as  one 
which  a  blow  would  break  in  pieces.  Others  think  it  a 
hoop  placed  around  the  trunk  of  a  living  tree,  whose 
growth  must  girdle  the  tree,  or  burst  the  hoop.  But 
sounder  judges  believe  that  it  more  resembles  the  tree 
itself,  —  native  to  the  soil  that  bore  it,  —  waxing  s.trong 
in  sunshine  and  in  storm,  putting  forth  branches,  leaves, 
and  roots,  according  to  the  laws  of  its  own  growth,  and 
flourishing  with  eternal  verdure.  Our  constitution,  like 
that  of  England,  contains  all  that  is  required  to  adapt 
itself  to  the  present  and  future  changes  and  wants  of 
a  free  and  advancing  people.  This  great  nation,  like  a 
distant  planet  in  the  solar  system,  may  sweep  round  a 
wide  orbit ;  but  in  its  revolutions  it  never  gets  beyond 
the  reach  of  the  central  light.  The  sunshine  of  con- 
stitutional law  illumines  its  pathway  in  all  its  changing 
positions.  We  have  not  yet  arrived  at  the  "  dead  point" 
where  the  hoop  must  burst — the  mould  be  shattered  — 
the  tree  girdled  —  or  the  sun  shed  darkness  rather  than 
light.  By  a  liberal  construction  of  the  constitution,  our 
government  has  passed  through  many  storms  unharmed. 
Slaveholding  States,  other  than  those  whose  inhabitants 
originally  formed  it,  have  found  their  way  into  the 
Union,  notwithstanding  the  guarantee  of  equal  rights 
to  all.  The  territories  of  Florida  and  Louisiana  have 
been  purchased  from  European  powers.  Conquest  has 
added  a  nation  to  our  borders.  The  purchased  and  the 


12  CONSTITUTION   OF   THE   UNITED    STATES. 

conquered  regions  are  now  legally  a  part  of. the  United 
States.  The  admission  of  new  States  containing  a  privi- 
leged class,  the  incorporation  into  our  Union  of  a  for- 
eign people,  are  held  to  be  lawful  and  valid  by  all  the 
courts  of  the  country.  Thus  far  from  the  old  anchor- 
age have  we  sailed  under  the  flag  of  "  public  necessity," 
"  general  welfare,"  or  "  common  defence."  Yet  the  great 
charter  of  our  political  rights  "still  lives;"  and  the 
question  of  to-day  is,  whether  that  instrument,  which 
has  not  prevented  America  from  acquiring  one  country 
by  purchase,  and  another  by  conquest,  will  permit  her 
to  save  herself? 

POWERS  WE  SHOULD  EXPECT  TO  FIND. 

If  the  ground-plan  of  our  government  was  intended 
to  be  more  than  a  temporary  expedient,  — if  it  was  de- 
signed, according  to  the  declaration  of  its  authors,  for  a 
perpetual  Union,  —  then  it  will  doubtless  be  found,  upon 
fair  examination,  to  contain  whatever  is  essential  to 
carry  that  design  into  effect.  Accordingly,  in  addition 
to  provisions  for  adapting  it  to  great  changes  in  the 
situation  and  circumstances  of  the  people  by  amend- 
ments, we  find  that  powers  essential  to  its  own  perpe- 
tuity are  vested  in  the  executive  and  legislative 
departments,  to  be  exercised  according  to  their  discretion, 
for  the  good  of  the  country  —  powers  which,  however 
dangerous,  must  be  intrusted  to  every  government,  to 
enable  it  to  maintain  its  own  existence,  and  to  protect 
the  rights  of  the  people.  Those  who  founded  a  gov- 
erment  for  themselves  intended  that  it  should  never  be 
overthrown ;  nor  even  altered,  except  by  those  under 
whose  authority  it  was  established.  Therefore  they 
gave  to  the  President,  and  to  Congress,  the  means 


INTRODUCTION.  13 

essential  to  the  preservation  of  the  republic,  but  none 
for  its  dissolution. 

LAWS  FOR  PEACE,  AND  LAWS  FOR  WAR. 

Times  of  peace  have  required  the  passage  of  numer- 
ous statutes  for  the  protection  and  development  of 
agricultural,  manufacturing,  and  commercial  industry, 
and  for  the  suppression  and  punishment  of  ordinary 
crimes  and  offences.  A  state  of  general  civil  war  in 
the  United  States  is,  happily,  new  and  unfamiliar. 
These  times  have  demanded  new  and  unusual  legis- 
lation to  call  into  action  those  powers  which  the  con- 
stitution provides  for  times  of  war. 

Leaving  behind  us  the  body  of  laws  regulating  the 
rights,  liabilities,  and  duties  of  citizens,  in  time  of  public 
tranquillity,  we  must  now  turn  our  attention  to  the 
KESERVED  and  HITHERTO  UNUSED  powers  contained  in  the 
constitution,  which  enable  Congress  to  pass  a  body  of 
laws  to  regulate  the  rights,  liabilities,  and  duties  of 
citizens  in  time  of  war.  We  must  enter  and  explore 
the  arsenal  and  armory,  with  all  their  engines  of  defence, 
enclosed,  by  our  wise  forefathers  for  the  safety  of  the 
republic,  within  the  old  castle  walls  of  that  constitu- 
tion ;  for  now  the  garrison  is  summoned  to  surrender ; 
and  if  there  be  any  cannon,  it  is  time  to  unlirnber  and 
run  them  out  the  port-holes,  to  fetch  up  the  hot  shot, 
to  light  the  match,  and  hang  out  our  banner  on  the 
outer  walls. 

THE  UNION  IS  GONE    FOREVER    IF  THE    CONSTITUTION  DENIES    THE 
POWER  TO   SAVE  IT. 

The  question  whether  republican  constitutional  gov- 
ernment shall  now  cease  in  America,  must  depend  upon 


14  CONSTITUTION    OF   THE   UNITED    STATES. 

the  construction  given  to  these  hitherto  unused  powers. 
Those  who  desire  to  see  an  end  of  this  government 
will  deny  that  it  has  the  ability  to  save  itself.  Many 
new  inquiries  have  arisen  in  relation  to  the  existence 
and  limitation  of  its  powers.  Must  the  successful 
prosecution  of  war  against  rebels,  the  preservation  of 
national  honor,  and  securing  of  permanent  peace, — if 
attainable  only  by  rooting  out  the  evil  which  caused 
and  maintains  the  rebellion,  —  be  eifected  by  destroy- 
ing rights  solemnly  guaranteed  by  the  constitution 
we  are  defending?  If  so,  the  next  question  will 
be,  whether  the  law  of  self-defence  and  overwhelm- 
ing necessity  will  not  justify  the  country  in  denying 
to  rebels  and  traitors  in  arms  whatever  rights  they 
or  their  friends  may  claim  under  a  charter  which 
they  have  repudiated,  and  have  armed  themselves  to 
overthrow  and  destroy  ?  Can  one  party  break  the 
contract,  and  justly  hold  the  other  party  bound  by  it? 
Is  the  constitution  to  be  so  interpreted  that  rebels  and 
traitors  cannot  be  put  down  ?  Are  we  so  hampered,  as 
some  have  asserted,  that  even  if  war  end  in  reestab- 
lishing the  Union,  and  enforcing  the  laws  over  all  the 
land,  the  results  of  victory  will  be  turned  against  us, 
and  the  conquered  enemy  may  then  treat  us  as  though 
they  had  been  victors-?  Will  vanquished  criminals  be 
able  to  resume  their  rights  to  the  same  political  supe- 
riority over  the  citizens  of  Free  States,  which,  as  the 
only  "  privileged  class,"  they  have  hitherto  enjoyed  ? 

Have  they  who  alone  have  made  this  rebellion,  while 
committing  treason  and  other  high  crimes  against  the 
republic,  a  protection,  an  immunity  against  punishment 
for  these  crimes,  whether  by  forfeiture  of  life  or  prop- 
erty? by  reason  of  any  clause  in  the  constitution  ?  Can 


INTRODUCTION.  15 

government,  the  people's  agent,  wage  genuine  and  ef- 
fectual war  against  their  enemy  ?  or  must  the  soldier  of 
the  Union,  when  in  action,  keep  one  eye  upon  his  rifle, 
and  the  other  upon  the  constitution  ?  Is  the  power  to 
make  war,  when  once  lawfully  brought  into  action,  to 
be  controlled,  baffled,  and  emasculated  by  any  obliga- 
tion to  guard  or  respect  rights  set  up  by  or  for  belliger- 
ent traitors  ? 

THE  LEADING  QUESTIONS  STATED. 

What  limit,  if  any,  is  prescribed  to  the  war-making 
power  of  the  President,  as  Commander-in-  Chief  of  the 
army  and  navy  of  the  United  States  ?  What  authority 
has  Congress  to  frame  laws  interfering  with  the  ordi- 
nary civil  rights  of  persons  and  property,  of  loyal  or 
disloyal  citizens,  in  peaceful  or  in  rebellious  districts; 
of  the  enemy  who  may  be  captured  as  spies,  as  pirates, 
as  guerrillas  or  bush-whackers  ;  as  aiders  and  comforters 
of  armed  traitors,  or  as  soldiers  in  the  battle-field  ? 
What  rights  has  Congress,  or  the  President,  in  relation 
to  belligerent  districts  of  country;  in  relation  to  slaves 
captured  or  escaping  into  the  lines  of  our  army,  or 
escaping  into  Free  States ;  or  slaves  used  by  the  enemy 
in  military  service ;  or  those  belonging  to  rebels,  not 
so  used  ?  Whether  they  are  contraband  of  war  ?  and 
whether  they  may  be  released,  manumitted,  or  emanci- 
pated, and  discharged  by  the  civil  or  military  authority  ? 
or  whether  slaves  may  be  released  from  their  obligation 
to  serve  rebel  masters  ?  and  whether  slavery  may  be 
abolished  with  or  without  the  consent  of  the  masters, 
as  a  military  measure,  or  as  a  legislative  act,  required 
by  the  public  welfare  and  common  defence  ?  Where 
the  power  to  abolish  it  resides,  under  the  constitution  ? 


16  CONSTITUTION   OF   THE   UNITED   STATES. 

And  whether  there  is  any  restraint  or  limitation  upon 
the  power  of  Congress  to  punish  treason  ?  What  are 
the  rights  of  government  over  the  private  property  of 
loyal  citizens  ?  What  are  the  rights  and  liabilities  of 
traitors?  These  and  similar  inquiries  are  frequently 
made  among  the  plain  people;  and  it  is  for  the  pur- 
pose of  explaining  some  of  the  doctrines  of  law  appli- 
cable to  them,  that  the  following  suggestions  have  been 
prepared. 


PUBLIC   USE   OF   PRIVATE   PROPERTY.  17 

• 

CHAPTER    I. 

THE  CONSTITUTIONAL  RIGHT  OF  THE  GOVERNMENT  TO  AP- 
PROPRIATE PRIVATE  PROPERTY  TO  PUBLIC  USE,  EITHER 
IN  TIME  OF  PEACE  OR  IN  TIME  OF  WAR. 

The  ffeneral  government  of  the  United  States  has,  in 
time  of  peace,  a  legal  right,  under  the  constitution,  to  appro- 
priate to  public  use  the  private  property  of  any  subject,  or 
of  any  number  of  subjects,  owing  it  allegiance. 

Each  of  the  States  claims  and  exercises  a  similar 
right  over  the  property  of  its  own  citizens. 

THE  EIGHT  IS   FOUNDED  IN  REASON. 

All  permanent  governments  in  civilized  countries 
assert  and  carry  into  effect,  in  different  ways,  the 
claim  of  "  eminent  domain ; "  for  it  is  essential  to 
their  authority,  and  even  to  their  existence.  The 
construction  of  military  defences,  such  as  forts,  arse- 
nals, roads,  navigable  canals,  however  essential  to  the 
protection  of  a  country  in  war,  might  be  prevented  by 
private  interests,  if  the  property  of  individuals  could 
not  be  taken  by  the  country,  through  its  government. 
Internal  improvements  in  time  of  peace,  however  im- 
portant to  the  interests  of  the  public,  requiring  the 
appropriation  of  real  estate  belonging  to  individuals, 
might  be  interrupted,  if  there  were  no  power  to  take, 
without  the  consent  of  the  owner,  what  the  public  use 
requires.  And  as  it  is  the  government  which  protects 
all  citizens  in  their  rights  to  life,  liberty,  and  property, 
they  are  deemed  to  hold  their  property  subject  to  the 
3 


18  CONSTITUTION    OF   THE   UNITED    STATES. 

claim  of  the  supreme  protector  to  take  it  from  them 
when  demanded  by  "  public  welfare."  It  is  under  this 
quasi  sovereign  power  that  the  State  of  Massachusetts 
seizes  by  law  the  private  estates  of  her  citizens;  and 
she  even  authorizes  several  classes  of  corporations  to 
seize  land,  against  the  will  of  the  proprietor,  for  public 
use  and  benefit.  Railroads,  canals,  turnpikes,  tele- 
graphs, bridges,  aqueducts,  could  never  have  been 
constructed  were  the  existence  of  this  great  right 
denied.  And  the  TITLE  to  that  interest  in  real  estate, 
which  is  thus  acquired  by  legal  seizure,  is  deemed  by 
all  the  courts  of  this  commonwealth  to  be  as  legal,  and 
as  constitutional,  as  if  purchased  and  conveyed  by  deed, 
under  the  hand  and  seal  of  the  owner. 

INDEMNITY  IS  REQUIRED. 

But,  when  individuals  are  called  upon  to  give  up 
what  is  their  own  for  the  advantage  of  the  commu- 
nity, justice  requires  that  they  should  be  fairly  com- 
pensated for  it:  otherwise  public  burdens  would  be 
shared  unequally.  To  secure  the  right  to  indemnifi- 
cation, which  was  omitted  in  the  original  constitution 
of  the  United  States,  an  amendment  was  added,  which 
provides,  (Amendments,  Art.  V,  last  clause,)  "  Nor  shall 
private  property  be  taken  for  public  use  ivithout  just  compen- 
sation" * 

The  language  of  this  amendment  admits  the  right  of 
the  United  States  to  take  private  property  for  public 
use.  This  amendment,  being  now  a  part  of  the  consti' 
tution,  leaves  that  right  no  longer  open  to  question,  if 
it  ever  was  questioned. 

*  Similar  provisions  are  found  in  the  constitution  of  Massachusetts,  and 
eeveraV  other  states. 


PUBLIC    USE   OF   PRIVATE  PROPERTY.  19 

In  guarding  against  the  abuse  of  the  right  to  take 
private  property  for  public  use,  it  is  provided  that  the 
owner  shall  be  entitled  to  be  fairly  paid  for  it ;  and 
thus  he  is  not  to  be  taxed  more  than  his  due  share  fo'r 
public  purposes. 

It  is  not  a  little  singular  that  the  framers  of  the 
constitution  should  have  been  less  careful  to  secure 
equality  in  distributing  the  burden  of  taxes.  Sect.  8 
requires  duties,  imposts,  and  excises  to  be  uniform  through, 
out  the  United  States,  but  it  does  not  provide  that  taxes 
should  be  uniform.  Although  Art.  I.,  Sect.  9,  provides 
that  no  capitation  or  other  direct  tax  shall  be  laid  unless 
in  proportion  to  the  census,  yet  far  the  most  important 
subjects  of  taxation  are  still  unprotected,  and  may  be 
UNEQUALLY  assessed,  without .  violating  any  clause  of 
that  constitution,  which  so  carefully  secures  equality 
of  public  burdens  by  providing  compensation  for  pri- 
vate property  appropriated  to  the  public  benefit. 

• 

"PUBLIC  USE." 

What  is  "public  use  "  for  which  private  property  may 
be  taken  ? 

Every  appropriation  of  property  for  the  benefit  of  the 
United  States,  either  for  a  national  public  improvement, 
or  to  carry  into  effect  any  valid  law  of  Congress  for  the 
maintenance,  protection,  or  security  of  national  inter- 
ests, is  "  public  use"  Public  use  is  contradistinguished 
from  private  use.  That  which  is  for  the  use  of  the  country, 
however  applied  or  appropriated,  is  for  public  use. 

Public  use  does  not  require  that  the  property  taken 
shall  be  actually  used.  It  may  be  disused,  removed,  or 
destroyed.  And 'destruction  of  private  property  maybe 
the  best  public  use  it  can  be  put  to. 


20  CONSTITUTION    OF   THE   UNITED    STATES. 

Suppose  a  bridge,  owned  by  a  private  corporation, 
were  so  located  as  to  endanger  a  military  work  upon 
the  bank  of  a  river.  The  destruction  of  that  bridge  to 
£ain  a  military  advantage  would  be  appropriating  it  to 
public  use. 

So  also  the  blowing  up  or  demolition  of  buildings  in 
a  city,  for  the  purpose  of  preventing  a  general  confla- 
gration, would  be  an  appropriation  of  them  to  public 
use.  The  destruction  of  arms,  or  other  munitions  of  war, 
belonging  to  private  persons,  in  order  to  prevent  their 
falling  into  possession  of  the  enemy,  would  be  applying 
them  to  public  use.  Congress  has  power  to  pass  laws 
providing  for  the  common  defence  and  general  welfare, 
under  Art.  I.  Sect.  8  of  the  constitution  ;  and  whenever, 
in  their  judgment,  the  common  defence  or  general 
welfare  requires  them  to  authorize  the  appropriation  of 
private  property  to  public  use, —  whether  that  use  be 
the  employment  or  destruction  of  the  property  taken,  —  they 
have  the  right  to  pass  such  laws ;  to  appropriate  pri- 
vate property  in  that  way ;  and  whatever  is  done  with 
it  is  "public  use,"  and  entitles  the  owner  to  just  com- 
pensation therefor. 

ALL  KINDS  OF  PROPERTY,  INCLUDING    SLAVES,  MAY  BE  SO  APPRO- 
PRIATED. 

There  is  no  restriction  as  to  the  kind  or  character  of 
private  property  which  may  be  lawfully  thus  appro- 
priated, whether  it  be  real  estate,  personal  estate,  rights 
in  action  or  in  possession,  obligations  for  money,  or  for 
labor  and  service.  Thus  the  obligations  of  minor  chil- 
dren to  their  parents,  of  apprentices  to  their  masters, 
and  of  other  persons  owing  labor  and  service  to  their 
masters,  may  lawfully  be  appropriated  to  public  use,  or 


PUBLIC    USE    OF   PRIVATE   PROPERTY.  21 

discharged  and  destroyed,  for  public  benefit,  by  Con- 
gress, with  the  proviso  that  just  compensation  shall  be 
allowed  to  the  parent  or  master. 

Our  government,  by  treaty,  discharged  the  claims 
of  its  own  citizens  against  France,  and  thus  appro- 
priated private  property  to  public  use.  At  a  later 
date  the  United  States  discharged  the  claims  of  certain 
slave  owners  to  labor  and  service,  whose  slaves  had 
been  carried  away  by  the  British  contrary  to  their 
treaty  stipulations.  In  botrf  cases  indemnity  was 
promised  by  our  government  to  the  owners ;  and  in 
case  of  the  slave  masters  it  was  actually  paid.  By 
abolishing  slavery  in  the  District  of  Columbia,  that 
which  was  considered  for  the  purposes  of  the  act  as 
private  property  was  appropriated  to  public  use,  with 
just  compensation  to  the  owners ;  Congress,  in  this 
instance,  having  the  right  to  pass  the  act  as  a  local, 
municipal  law;  but  the  compensation  was  from  the 
treasury  of  the  United  States. 

During  the  present  rebellion,  many  minors,  appren- 
tices, and  slaves  have  been  relieved  from  obligation  to 
their  parents  and  masters,  the  claim  for  their  services 
having  been  appropriated  to  public  use,  by  employing 
them  in  the  military  service  of  the  country. 

That  Congress  should  have  poiver  to  appropriate  every 
description  of  private  property  for  public  benefit  in  time 
of  war,  results  from  the  duty  imposed  on  it  by  the 
constitution  to  pass  laws  "providing  for  the  common 
defence  and  general  welfare." 

Suppose  that  a  large  number  of  apprentices  desired 
to  join  the  army  as  volunteers  in  time  of  sorest  need, 
but  were  restrained  from  so  doing  only  by  reason  of 
their  owing  labor  and  service  to  their  employers,  who 


22  CONSTITUTION   OF   THE   UNITED    STATES. 

were  equally  with  them  citizens  and  subjects  of  this 
government :  would  any  one  doubt  or  deny  the  right 
of  government  to  accept  these  apprentices  as  sol- 
diers, to  discharge  them  from  the  obligation  of  their 
indentures,  providing  just  compensation  to  their  em- 
ployers for  loss  of  their  services  ?  Suppose  that 
these  volunteers  owed  labor  and  service  for  life,  as 
slaves,  instead  of  owing  it  for  a  term  of  years ;  what 
difference  could  it  make  as  to  the  right  of  government 
to  use  their  services,  and  discharge  their  obligations, 
or  as  to  the  liability  to  indemnify  the  masters  ? 
The  right  to  use  the  services  of  the  minor,  the 
apprentice,  and  the  slave,  for  public  benefit,  belongs 
to  the  United  States.  The  claims  of  all  American 
citizens  upon  their  services,  whether  by  local  law,  or 
by  common  law,  or  by  indentures,  can  be  annulled  by 
the  same  power,  for  the  same  reasons,  and  under  the 
same  restrictions  that  govern  the  appropriation  of  any 
other  private  property  to  public  use. 

THE  UNITED  STATES  MAY   REQUIRE  ALL  SUBJECTS  TO  DO  MILITARY 

DUTY. 

Slaves,  as  well  as  apprentices  and  minors,  are 
equally  subjects  of  the  United  States,  whether  they 
are  or  are  not  citizens  thereof.  The  government  of 
the  United  States  has  the  right  to  call  upon  all  its 
subjects  to  do  military  duty.  If  those  who  owe  labor 
and  service  to  others,  either  by  contract,  by  inden- 
ture, by  common  or  statute  law,  or  by  local  usage, 
could  not  be  lawfully  called  upon  to  leave  their  em- 
ployments to  serve  their  country,  no  inconsiderable 
portion  of  the  able-bodied  men  would  thus  be  ex 
empt,  and  the  constitution  and  laws  of  the  land 


PUBLIC    USE    OF    PRIVATE    PROPERTY.  23 

providing  for  calling  out  the  array  and  navy  would  be 
set  at  nought.  But  the  constitution  makes  no  such 
exemptions  from  military  duty.  Private  rights  cannot 
be  set  up  to  overthrow  the  claims  of  the  country  to 
the  services  of  every  one  of  its  subjects  who  owes  it 
allegiance. 

How  far  the  United  States  is  under  obligation  to 
compensate  parents,  masters  of  apprentices,  or  masters 
of  slaves,  for  the  loss  of  service  and  labor  of  those 
subjects  who  are  enlisted  in  the  army  and  navy,  has 
not  been  yet  decided.*  The  constitution  recognizes 
slaves  as  "persons  held  to  labor  or  service"  So  also  are 
apprentices  and  minor  children  "  persona  held  to  labor 
and  service."  And,  whatever  other  claims  may  be  set 
up,  by  the  laws  of  either  of  the  slave  states,  to  any 
class  of  "  persons,"  the  constitution  recognizes  only  the 
claim  of  individuals  to  the  labor  and  service  of  other  in- 
dividuals. It  seems  difficult,  therefore,  to  state  any 
sound  principle  which  should  require  compensation  in 
one  case  and  not  in  the  other. 


WILL  SLAVEHOLDERS  BE   ENTITLED  TO  INDEMNITY  IF  THEIR  SLAVES 
ARE  USED  FOR  MILITARY  PURPOSES? 

It  is  by  no  means  improbable,  that,  in  the  emergency 
which  we  are  fast  approaching,  the  right  and  duty 
of  the  country  to  call  upon  all  its  loyal  subjects  to  aid 
in  its  military  defence  will  be  deemed  paramount  to  the 
claims  of  any  private  person  upon  such  subjects,  and  that  the 

*  If  an  apprentice  enlist  in  the  army,  the  courts  will  not,  upon  a  habeas 
corpus,  issued  at  the  relation  of  the  master,  remand  the  apprentice  to  his 
custody,  if  he  be  unwilling  to  return,  hut  will  leave  the  master  to  his  suit 
against  the  officer,  who,  by  Stat.  16  Mar.  1802,  was  forbidden  to  enlist  him 
without  the  master's  consent.  Commonwealth  v.  Robinson,  1  S.  &  R.  353  ; 
Commonwealth  v.  Harris,  7  Pa.  L.  J.  283. 


24  CONSTITUTION    OF   THE   UNITED    STATES. 

loss  of  labor  and  service  of  certain  citizens,  like  the  loss 
of  life  and  property,  which  always  attends  a  state  of 
war,  must  be  borne  by  those  upon  whom  the  misfortune 
happens  to  fall.  It  may  become  one  of  the  great  polit- 
ical questions  hereafter,  whether,  if  slavery  should  as  a 
civil  act  in  time  of  peace,  or  by  treaty  in  time  of  war, 
be  wholly  or  partly  abolished,  for  public  benefit,  or  pub- 
lic defence,  such  abolishment  is  an  appropriation  of  private 
property  for  public  use,  within  the  meaning  of  the  constitution. 


INDEMNITY  TO    MORMONS. 

The  question  has  not  yet  arisen  in  the  courts  of  the 
United  States,  whether  the  act  of  Congress,  which, 
under  the  form  of  a  statute  against  polygamy  abolishes 
Mormonism,  a  domestic  institution,  sustained  like  slavery 
only  by  local  law,  is  such  an  appropriation  of  the  claims 
of  Mormons  to  the  labor  and  service  of  their  wives  as 
requires  just  compensation  under  the  constitution  ?  A 
decision  of  this  question  may  throw  some  light  on  the 
point  now  under  consideration. 

EFFECT    OF    NATURALIZATION    AND    MILITIA    LAWS    ON    THE    QUES- 
TION OF  INDEMNITY  TO    SLAVE-MASTERS. 

A  further  .question  may  arise  as  to  the  application 
of  the  "  compensation  "  clause  above  referred  to.  Con- 
gress has  the  power  to  pass  naturalization  laws,  by  Art. 
I.  Sect.  8.  This  power  has  never  been  doubted.  The 
.only  question  is,  whether  this  power  is  not  exclusive.* 
Congress  may  thus  give  the  privileges  of  citizenship  to 

*  See  Chirac  v.  Chirac,  2  Whea.  269 ;  U.  S.  v.  Villato,  2  Ball.  372 ; 
Thirlow  v.  Mass.,  5  How.  585  ;  Smith  v.  Turner,  7  ib.  556  ;  Golden  v.  Prince, 
3  W.  C.  C.  Reports,  314. 


PUBLIC    USE   OF   PRIVATE   PROPERTY.  25 

any  persons  whatsoever,  black  or  white.  Colored  men, 
having  been  citizens  in  some  of  the  States  ever  since  they 
were  founded,  having  acted  as  citizens  prior  to  1788  in 
various  civil  and  military  capacities,  are  therefore  citi- 
zens of  the  United  States.* 

Under  the  present  laws  of  the  United  States,  accord- 
ing to  the  opinion  of  the  attorney-general  of  Massa- 
chusetts, colored  men  are  equally  with  white  men  required  to 
le  enrolled  in  the  militia  of  the  United  States,^  although 
such  was  not  the  case  under  the  previous  acts  of  1792 
and  1795.  "The  general  government  has  authority  to 
determine  who  shall  and  who  may  not  compose  the 
militia  of  the  United  States ;  and  having  so  determined, 
the  state  government  has  no  legal  authority  to  prescribe 
a  different  enrolment.  £  If?  therefore,  Congress  exercise 
either  of  these  undoubted  powers  to  grant  citizenship  to 
all  colored  persons  residing  or  coming  within  either 
of  the  States,  or  to  pass  an  act  requiring  the  enrolment 
of  all  able-bodied  persons  within  a  prescribed  age, 
whether  owing  labor  and  service  or  not,  as  part  of 
the  militia  of  the  United  /States,  and  thereby  giving  to  all, 
as  they  become  soldiers  or  seamen,  their  freedom  from 
obligations  of  labor  and  service,  except  military  labor 
and  service,  then  the  question  would  arise,  whether 
government,  by  calling  its  own  subjects  and  citizens 
into  the  military  service  of  the  country,  in  case  of  over- 
whelming necessity,  could  be  required  by  the  constitu- 
tion to  recognize  the  private  relations  in  which  the 
soldier  might  stand,  by  local  laws,  to  persons  setting  up 

*  See  case  of  Dred  Scott;  which  in  no  part  denies  that  if  colored  men 
were  citizens  of  either  of  the  states  which  adopted  the  constitution,  they 
were  citizens  of  the  United  States. 

t  See  Stat.  U.  S.  July  17,  1862.  J  8  Gray's  R.  615. 

4 


ZO  CONSTITUTION   OF   THE   UNITED    STATES. 

claims  against  him  ?  If  white  subjects  or  citizens,  owe 
labor  and  service,  even  by  formal  indentures,  such 
obligations  afford  no  valid  excuse  against  the  requisition 
of  government  to  have  them  drafted  into  the  militia  to 
serve  the  country.  The  government  does  not  compensate 
those  who  claim  indemnity  for  the  loss  of  such  "  labor 
and  service."  Whether  the  color  of  the  debtor,  or  the 
length  of  time  during  which  the  obligation  (to  labor  and 
service)  has  to  run,  or  the  evidence  by  which  the  existence 
of  the  obligation  is  proved,  can  make  an  essential  differ- 
ence between  the  different  kinds  of  labor  and  service, 
remains  to  be  seen.  The  question  is,  whether  the 
soldier  or  seaman,  serving  his  country  in  arms,  can  be 
deemed  private  property ',  as  recognized  in  the  constitution 
of  the  United  States  ? 

DOES  THE   WAR  POWER  OF   SEIZURE    SUPERSEDE    THE  CIVIL  POWER 
.OF    CONGRESS    TO  APPROPRIATE    PRIVATE    PROPERTY    TO   PUBLIC 

USE  ?  . 

That  the  property  of  any  citizen  may,  under  certain 
circumstances,  be  seized  in  time  of  war,  by  military  officers, 
for  public  purposes,  is  not  questioned,  just  compensation 
being  offered,  or  provided  for;  but  the  question  has 
been  asked,  whether  this  power  does  not  supersede 
the  right  of  Congress,  in  war,  to  pass  laws  to  take  away 
what  martial  law  leaves  unappropriated  ? 

This  inquiry  is  conclusively  answered  by  reference  to 
the  amendment  of  the  constitution,  above  cited,  which 
admits  the  existence  of  that  power  in  CONGRESS;*  but  in 
addition  to  this,  there  are  other  clauses  which  devolve 
powers  and  duties  on  the  legislature,  giving  them  a 
large  and  important  share  in  instituting,  organizing, 
carrying  on,  regulating,  and  ending  war;  and  these 
duties  xmld  not,  under  all  circumstances,  be  discharged 

*  Amendments,  Art.  V.  last  clause. 


PUBLIC   USE   OF   PRIVATE   PROPERTY.  27 

in  war,  without  exercising  the  right  to  take  for  public 
use  the  property  of  the  subject.  It  would  seem  strange 
if  private  property  could  not  be  so  taken,  while  it  is 
undeniable  that  in  war  the  government  can  call  into 
the  military  service  of  the  country  every  able-bodied 
citizen,  and  tax  his  property  to  any  extent. 

REFERENCES   AS  TO  THE  CONSTITUTION,    SHOWING   THE    WAR    POW- 
ERS OF  CONGRESS. 

The  powers  of  the  legislative  department  in  relation 
to  war  are  contained  chiefly  in  the  following  sections 
in  the  constitution  :  — 

Art.  I.,  Sect.  8,  Cl.  11.  Congress  may  institute  war  by 
declaring  it  against  an  enemy.  The  President  alone 
cannot  do  so.  Also,  Congress  may  make  laws  concern- 
ing captures  on  land,  as  well  as  on  water. 

Art.  I.,  Sect.  8,  Cl.  12.  Congress  may  raise  and 
support  armies :  and  provide  and  maintain  a  navy. 

Art.  I.,  Sect.  8,  Cl.  14.  Congress  may  make  laws 
for  the  government  of  land  and  naval  forces. 

Art.  I.,  Sect.  8,  Cl.  15.  Congress  may  provide  for 
catting  forth  the  militia  to  execute  the  laws  of  the  Union, 
suppress  insurrection,  and  repel  invasion. 

Art.  L,  Sect.  8,  Cl.  16 :  And  may  provide  for  or- 
ganizing, arming,  and  disciplining  the  militia,  and  for 
governing  such  part  of  them  as  may  be  employed  in  the 
service  of  the  United  States. 

The  preamble  to  the  constitution  declares  the  objects 
for  which  it  was  framed  to  be  these  :  "  to  form  a  more 
perfect  Union;  establish  justice;  insure  domestic  twn- 
gidlliiy  •  provide  for  the  common  defence;  promote  the 
general  welfare,  and  secure  the  blessings  of  liberty  to 
ourselves  and  our  posterity."  In  Art.  L,  Sect.  8,  Cl.  1, 


Zo  CONSTITUTION   OF   THE   UNITED    STATES. 

the  first  power  given  to  Congress  is  to  lay  and  collect 
taxes,  duties,  imposts,  and  excises,  to  pay  the  debts, 
and  provide  for  the  common  defence  and  general  tvel- 
fare  of  the  United  States.  And  in  the  same  article  (the 
eighteenth  clause)  express  power  is  given  to  Congress 
to  make  all  laws  which  shall  be  necessary  and  proper  for  carry- 
ing into  execution  the  foregoing  and  all  other  poivers  vested  by 
the  constitution  in  the  government  of  the  United  States,  or  in  any 
department  or  officer  thereof" 

SLAVE    PROPERTY    SUBJECT    TO    THE    SAME    LIABILITY    AS    OTHER 
PROPERTY   TO    BE    APPROPRIATED    FOR   WAR   PURPOSES. 

If  the  public  ivelfare  and  common  defence,  in  time  of  war, 
require  that  the  claims  of  masters  over  their  appren- 
tices or  slaves  should  be  cancelled  or  abrogated,  against 
their  consent,  and  if  a  general  law  carrying  into  execu- 
tion such  abrogation,  is,  in  the  judgment  of  Congress, "  a 
necessary  and  proper  measure  for  accomplishing  that 
object,"  there  can  be  no  question  of  the  constitutional 
power  and  right  of  Congress  to  pass  such  laws.  The 
only  doubt  is  in  relation  to  the  right  to  compensation. 
If  it  should  be  said  that  the  release  of  slaves  from  their 
servitude  would  be  tantamount  to  impairing  or  destroy- 
ing the  obligation  of  contracts,  it  may  be  said,  that  though 
states  have  no  right  to  pass  laws  impairing  the  obli- 
gation of  contracts,  Congress  is  at  liberty  to  pass  such 
laws.  It  will  be  readily  perceived  that  the  right  to 
abrogate  and  cancel  the  obligations  of  apprentices 
and  slaves  does  not  rest  solely  upon  the  power  of 
Congress  to  appropriate  private  property  to  public  use  ; 
but  it  may  be  founded  upon  their  power  and  obligation 
to  accomplish  one  of  the  chief  objects  for  which  the 
Union  was  formed,  viz.,  to  provide  for  the  common  defence 
and  general  welfare  of  the  United  States. 


PUBLIC    USE    OF   PRIVATE   PROPERTY.  29 

IMPORTANCE  AND  DANGER  OF  THIS   POWER. 

The  powers  conveyed  in  this  18th  clause  of  Art.  I, 
Sect.  8,  are  of  vast  importance  and  extent.  It  may  be 
said  that  they  are,  in  one  sense,  unlimited  and  discretion- 
ary. They  are  more  than  imperial.  But  it  was  in- 
tended by  the  framers  of  the  constitution,  or,  what  is 
of  more  importance,  by  the  people  who  made  and  adopt- 
ed it,  that  the  powers  of  government  in  dealing  with 
civil  rights  in  time  of  peace,  should  be  defined  and  lim- 
ited ;  but  the  powers  "  to  provide  for  the  general  ivelfare 
and  the  common  defence"  in  time  of  war,  should  be  un- 
limited. It  is  true  that  such  powers  may  be  temporarily 
abused ;  but  the  remedy  is  always  in  the  hands  of  the 
people,  who  can  unmake  laws  and  select  new  repre- 
sentatives and  senators. 

POWERS  OF  THE    PRESIDENT  NOT  IN  CONFLICT  WITH   THOSE  OF 
CONGRESS. 

It  is  not  necessary  here  to  define  the  extent  to  which 
congressional  legislation  may  justly  control  and  regu- 
late the  conduct  of  the  army  and  navy  in  service  ;  or 
where  falls  the  dividing  line  between  civil  and  martial 
law.  But  the  power  of  Congress  to  pass  laws  on  the 
subjects  expressly  placed  in  its  charge  by  the  terms  of 
the  constitution  cannot  be  taken  away  from  it,  by  rea- 
son of  the  fact  that  the  President,  as  commander-in-chief 
of  the  army  and  navy,  also  has  powers,  equally  consti- 
tutional, to  act  upon  the  same  subject-matters.  It  does 
not  follow  that  because  Congress  has  power  to  abro- 
gate the  claims  of  Mormons  or  slaveholders,  the  Presi- 
dent, as  commander,  may  not  also  do  the  same  thing. 

These  powers  are  not  inconsistent,  or  conflicting. 
Congress  may  pass  laws  concerning  captures  on  land 

»i  L  *. 


30  CONSTITUTION    OP   THE   UNITED    STATES. 

and  on  the  water.  If  slaves  are  captured,  and  are  treated 
as  "captured  property,"  Congress  should  determine 
what  is  to  be  done  with  them;*  and  it  will  be  the 
President's  duty  to  see  that  these  as  well  as  other  laws 
of  the  United  States  are  executed. 

CONGRESS   HAS    POWER    UNDER    THE    CONSTITUTION    TO    ABOLISH 

SLAVERY. 

Whenever,  in  the  judgment  of  Congress,  the  common 
defence  and  public  welfare,  in  time  of  war,  require  the 
removal  of  the  condition  of  slavery,  it  is  within  the 
scope  of  their  constitutional  authority  to  pass  laws  for 
that  purpose. 

If  such  laws  are  deemed  to  take  private  prop- 
erty for  public  use,  or  to  destroy  private  property 
for  public  benefit,  as  has  been  shown,  that  may  be  done 
under  the  constitution,  by  providing  just  compensation ; 
otherwise,  no  compensation  can  be  required.  It  has 
been  so  long  the  habit  of  those  who  engage  in  public 
life  to  disclaim  any  intention  to  interfere  with  slavery 
in  the  States,  that  they  have  of  late  become  accustomed 
to  deny  the  right  of  Congress  to  do  so.  But  the  constitu- 
tion contains  no  clause  or  sentence  prohibiting  the  exercise  ty 
Congress  of  the  plenary  power  of  abrogating  involuntary  servi- 
tude. The  only  prohibition  contained  in  that  instrument 
relating  to  persons  held  to  labor  and  service,  is  in  Art.  IV., 
which  provides  that,  "No  person  held  to  labor  and  service 
in  one  state,  under  the  laivs  thereof,  escaping  into  another, 
shall,  in  consequence  of  any  laiv  or  regulation  " therein" 
be  discharged  from  such  service  or  labor;  but  shall  be 
delivered  up  on  claim  of  the  party  to  whom  such  ser- 
vice or  labor  may  be  due."  Thus,  if  a  slave  or  appren- 

*  Constitution,  Art.  I.,  Sect.  8,  Cl.  11. 


PUBLIC    USE   OF   PRIVATE   PROPERTY.  31 

tice,  owing  service  to  his  employer  in  Maryland,  escapes  - 
to  New  York,  the  legislature  of  New  York  cannot,  by 
any  law  or  regulation,  legally  discharge  such  apprentice 
or  slave  from  his  liability  to  his  employer.  This  restric- 
tion is,  in  express  terms,  applicable  only  to  State  legislatures, 
and  not  to  Congress. 

Many  powers  given  to  Congress  are  denied  to  the 
States ;  and  there  are  obvious  reasons  why  the  supreme 
government  alone  should  exercise  so  important  a  right. 
That  a  power  is  withdrawn  from  the  States,  indicates, 
by  fair  implication,  that  it  belongs  to  the  United  States, 
unless  expressly  prohibited,  if  it  is  embraced  within 
the  scope  of  powers  necessary  to  the  safety  and  pres- 
ervation of  the  government,  in  peace  %or  in  civil  war. 

It  will  be  remarked  that  the  provision  as  to  slaves 
in  the  constitution  relates  only  to  fugitives  from  labor 
escaping  from  one  state  into  another ;  not  to  the  status 
or  condition  of  slaves  in  any  of  the  states  where  they 
are  held,  while  another  clause  in  the  constitution 
relates  to  fugitives  from  justice.*  Neither  clause  has 
any  application  to  citizens  or  persons  who  are  not 
fugitives.  And  it  would  be  a  singular  species  of  rea- 
soning to  conclude  that,  because  the  constitution  pre- 
scribed certain  rules  of  conduct  towards  persons  escaping 
from  one  State  into  another,  therefore  there  is  no  power 
to  make  rules  relating  to  other  persons  ivlio  do  not  escape 
from  one  State  into  another.  If  Congress  were  expressly- 
empowered  to  pass  laws  relating  to  persons  when 
escaping  from  justice  or  labor  by  fleeing  from  their 
own  States,  it  would  be  absurd  to  infer  that  there 
could  be  no  power  to  pass  laws  relating  to  these 
same  persons  when  staying  at  home.  The  govern- 

*  Constitution,  Art.  IV.  Sect.  2. 


32  CONSTITUTION    OF    THE   UNITED    STATES. 

ment  may  pass  laws  requiring  the  return  of  fugitives : 
they  may  pass  other  laws  punishing  their  crimes, 
or  relieving  them  from  penalty.  The  power  to  do  the 
one  by  no  means  negatives  the  power  to  do  the  other. 
If  Congress  should  discharge  the  obligations  of  slaves 
to  render  labor  and  service,  by  passing  a  law  to  that 
effect,  such  law  would  supersede  and  render  void  all 
rules,  regulations,  customs,  or  laws  of  either  State  to  the 
contrary,  for  the  constitution,  treaties,  and  laws  of  the 
United  States  are  the  supreme  law  of  the  land.  If 
slaves  were  released  by  act  of  Congress,  or  by  the  act 
of  their  masters,  there  would  be  no  person  licld  to  labor 
as  a  slave  by  the  laws  of  any  State,  and  therefore  there 
would  be  no  person  to  whom  the  clause  in  the  consti- 
tution restraining  State  legislation  could  apply.  This 
clause,  relating  to  fugitive  slaves,  has  often  been  misun- 
derstood, as  it  has  been  supposed  to  limit  the  power  of 
Congress,  while  in  fact  it  applies  in  plain  and  express  terms 
only  to  the  Slates,  controlling  or  limiting  their  powers,  but 
having  no  application  to  the  general  government.  If 
the  frame rs  of  the  constitution  intended  to  take  from 
Congress  the  power  of  passing  laws  relating  to  slaves 
in  the  States  or  elsewhere,  they  would  have  drafted  a 
clause  to  that  effect.  They  did  insert  in  that  instru- 
ment a  proviso  that  Congress  should  pass  no  law  pro- 
hibiting the  "importation  of  such  persons  as  any  of 
the  States  should  think  proper  to  admit"  (meaning 
slaves)  "  prior  to  1808."  *  And  if  they  did  not  de- 
sign that  the  legislature  should  exercise  control  over 
the  subject  of  domestic  slavery,  whenever  it  should 
assume  such  an  aspect  as  to  involve  national  interests, 
the  introduction  of  the  proviso  relating  to  the  slave 

*  Constitution,  Art.  I.  Sect.  9. 


PUBLIC    USE    OF   PRIVATE   PROPERTY.  33 

trade,  and  of  several  other  clauses  in  the  plan  of  gov- 
ernment, makes  the  omission  of  any  prohibition  of 
legislation  on  slavery  unaccountable. 


CONCLUSION. 


.  Thus  it  has  been  shown  that  the  government  have 
the  right  to  appropriate  to  public  use  private  property  of 
every  description ;  that  "  public  use "  may  require  the 
employment  or  the  destruction  of  such  property ;  that 
if  the  "  right  to  the  labor  and  service  of  others,"  as 
slaves,  be  recognized  in  the  broadest  sense  as  "prop> 
erty,"  there  is  nothing  in  the  constitution  which 
deprives  Congress  of  the  power  to  appropriate  "  that 
description  of  property  "  to  public  use,  by  terminating 
slavery,  as  to  all  persons  now  held  in  servitude,  when- 
ever laws  to  that  effect  are  required  by  "  the  public 
welfare  and  the  common  defence "  in  time  of  war ; 
that  this  power  is  left  to  the  discretion  of  Congrfess, 
who  are  the  sole  and  exclusive  judges  as  to  the  occa- 
sions when  it  shall  be  exercised,  and  from  whose  judg- 
ment there  is  no  appeal.  The  right  to  "just  compen- 
sation "  for  private  property  so  taken,  depends  upon 
the  circumstances  under  which  it  is  taken,  and  the 
loyalty  and  other  legal  conditions  of  the  claimant. 

NOTE.  —  As  to  the  use  of  discretionary  powers  in  other  departments,  see 
Martin  v,  Mott,  12  Wheat.  29-31 ;  Luther  v.  Borden,  7  How.  44,  45. 

5 


INTRODUCTION    TO    CHAPTER   H. 


THE  Constitution,  Art.  I.,  Sect.  8,  clause  18,  gives  Congress  power  "  to 
make  all  laws  which  shall  be  necessary  and  proper  for  carrying  into  execu- 
tion the  foregoing  powers,  and  all  other  powers  vested  by  this  Constitution 
in  the  Government  of  the  United  States,  or  in  any  Department  or  officer 
thereof." 

Art.  1L,  Sect.  2,  clause  1,  provides  that  "the  President  shall  be  Com- 
mander-in-chief of  the  Army  and  Navy  of  the  United  States,  and  of  the 
Militia  of  the  several  States,  when  called  into  the  actual  service  of  the 
United  States." 

Art.  L,  Sect.  8,  declares  that  "  Congress  shall  have  power  to  provide  for 
calling  forth  the  Militia  to  execute  the  laws  of  the  Union,  suppress  insur- 
rections, and  repel  invasions." 

As  the  President  is,  within  the  sense  of  Art.  L,  Sect.  8,  clause  18,  "  an 
officer  of  government ; "  and  by  virtue  of  Art.  II.,  Sect.  2,  clause  1,  he  is 
Commander-in-chief  of  the  Army  and  Navy ;  and  as,  by  virtue  of  Art.  II., 
Sect.  2,  clause  1,  and  Art.  I.,  Sect.  8,  the  power  is  vested  in  him  as  "  an 
officer  of  the  government "  to  suppress  rebellion,  repel  invasion,  and  to 
maintain  the  Constitution  by  force  of  arms,  in  time  of  war,  and  for  that 
purpose  to  overthrow,  conquer,  and  subdue  the  enemy  of  his  country,  so 
completely  as  to  "insure  domestic  tranquillity," — 'it  follows  by  Art.  I., 
Sect.  8,  clause  18,  that  Congress  may,  in  time  of  war,  pass  all  laws  which 
shall  be  necessary  and  proper  to  enable  the  President  to  carry  into  exe- 
cution "  all  his  military  powers. 

It  is  his  duty  to  break  down  the  enemy,  and  to  deprive  them  of  their 
means  of  maintaining  war :  Congress  is  therefore  bound  to  pass  such  laws 
as  will  aid  him  in  accomplishing  that  object. 

If  it  has  power  to  make  laws  for  carrying  on  the  government  in  time  of 
peace,  it  has  the  power  and  duty  to  make  laws  to  preserve  it  from  destruc- 
tion in  time  of  war. 

NOTE.  —  The  reader  is  referred  to  the  Preface,  pages  3  and  4,  for  remarks 
upon  the  Constitution,  Art.  I.,  Sect.  8,  clause  1,  relating  to  the  alleged 
power  of  Congress  "  to  provide  for  the  general  welfare  and  common  de- 
fence," and,  in  addition  to  the  authorities  there  cited,  reference  may  be  had 
to  the  speeches  of  Patrick  Henry,  who  fully  sustains  the  views  of  Mr.  Jef- 
ferson. 


34  CONSTITUTION   OF   THE   UNITED   STATES. 


CHAPTER    II. 

WAR  POWERS   OF  CONGRESS.* 

CONGRESS  has  power  to  frame  statutes  not  only  for  the 
punishment  of  crimes,  but  also  for  the  purpose  of  aid- 
ing the  President,  as  commander-in-chief  of  the  army 
and  navy,  in  suppressing  rebellion,  and  in  the  final  and 
permanent  conquest  of  a  public  enemy.  "  It  may  pass 
such  laws  as  it  may  deem  necessary,"  says  Chief  Justice 
Marshall,  "  to  carry  into  execution  the  great  powers 
granted  by  tlie  constitution  ; "  and  "  necessary  means, 
in  the  sense  of  the  constitution,  does  not  import  an 
absolute  physical  necessity,  so  strong  that  one  thing 
cannot  exist  without  the  other.  It  stands  for  any 
means  calculated  to  produce  the  end." 

KULES    OF  INTERPRETATION". 

The  constitution  provides  that  Congress  shall  have 
power  to  pass  "  all  laws  necessary  and  proper  "  for  car- 
rying into  execution  all  the  powers  granted  to  the  gov- 
ernment of  the  United  States,  or  any  department  or 
officer  thereof.  The  word  "  necessary,"  as  used,  is  not 
limited  by  the  additional  word  "  proper,"  but  enlarged 
thereby. 

"  If  the  word  necessary  were  used  in  the  strict,  rigorous  sense,  it 
would  be  an  extraordinary  departure  from  the  usual  course  of  the 
human  mind,  as  exhibited  in  solemn  instruments,  to  add  another  word, 
the  only  possible  effect  of  which  is  to  qualify  that  strict  and  rigorous 
meaning,  and  to  present  clearly  the  idea  of  a  choice  of  means  in  the 
course  of  legislation.  If  no  means  are  to  be  resorted  to  but  such  as- 

*  For  references  to  the  clauses  of  the  Constitution  containing  the  war 
powers  of  Congress,  see  ante,  pp.  27,  28. 


WAR   POWERS    OF   CONGRESS.  35 

are  indispensably  necessary,  there  can  be  neither  sense  nor  utility  in 
adding  the  word  ' proper?  for  the  indispensable  necessity  would  shut 
out  from  view  all  consideration  of  the  propriety  of  the  means."  * 

Alexander  Hamilton  says,  — 

<lThe  authorities  essential  to  the  care  of  the  common  defence  are 
these  :  To  raise  armies  ;  to  build  and  equip  fleets  ;  to  prescribe  rules  for 
the  government  of  both  ;  to  direct  their  operations  ;  to  provide  for  their 
support.  These  powers  ought  to  exist  WITHOUT  LIMITATION,  because 
it  is  impossible  to  foresee  or  to  define  the  extent  and  variety  of  national 
exigencies,  and  the  correspondent  extent  and  variety  of  the  means 
necessary  to  satisfy  them.  The  circumstances  which  endanger  the 
safety  of  nations  are  infinite ;  and  for  this  reason  no  constitutional 
shackles  can  wisely  be  imposed  on  the  power  to  which  the  care  of  it 
is  committed.  .  .  .  This  power  ought  to  be  under  the  direction  of  the 
same  councils  which  are  appointed  to  preside  over  the  common  defence. 
...  It  must  be  admitted,  as  a  necessary  consequence,  that  there  can 
be  no  limitation  of  that  authority  which  is  to  provide  for  the  defence 
and  protection  of  the  community  in  any  matter  essential  to  its  efficacy 
—  that  is,  in  any  matter  essential  to  the  formation,  direction,  or  sup- 
port of  the  NATIONAL  FORCES." 

This  statement,  Hamilton  says, — 

"  Rests  upon  two  axiom?,  simple  as  they  are  universal :  the  means 
ought  to  be  proportioned  to  the  end;  the  persons  from  whose  agency 
the  attainment  of  the  end  is  expected,  ought  to  possess  the  means  by 
which  it  is  to  be  attained."  f 

The  doctrine  of  the  Supreme  Court  of  the  United 
States,  announced  by  Chief  Justice  Marshall,  and  ap- 
proved by  Daniel  Webster,  Chancellor  Kent,  and  Judge 
Story,  is  thus  stated  :  — 

"  The  government  of  the  United  States  is  one  of  enumerated  pow- 
ers, and  it  can  exercise  only  the  powers  granted  to  it;  but  though 
limited  in  its  powers,  it  is  supreme  within  its  sphere  of  action.  It  is 
the  government  of  the  people  of  the  United  States,  and  emanated 
from  them.  Its  powers  tvere  delegated  by  all,  and  it  represents  all, 
and  acts  for  all. 

"  There  is  nothing  in  the  constitution  which  excludes  incidental  or 

•  3  Story's  Commentaries,  Sec.  122.      t  Federalist,  No.  23, -pp.  95,  96. 


36  CONSTITUTION    OF   THE   UNITED    STATES. 

implied  powers.  The  Articles  of  Confederation  gave  nothing  to  the 
United  States  but  what  was  expressly  granted ;  but  the  new  constitu- 
tion dropped  the  word  expressly,  and  left  the  question  whether  a  par- 
ticular power  was  granted  to  depend  on  a  fair  construction  of  the  whole 
instrument.  No  constitution  can  contain  an  accurate  detail  of  all  the 
subdivisions  of  its  powers,  and  all  the  means  by  which  they  might  be 
carried  into  execution.  It  would  render  it  too  prolix.  Its  nature 
requires  that  only  the  great  outlines  should  be  marked,  and  its  impor- 
tant objects  designated,  and  all  the  minor  ingredients  left  to  be  de- 
duced from  the  nature  of  those  objects.  The  sword  and  the  purse, 
all  the  external  relations,  and  no  inconsiderable  portion  of  the  industry 
of  the  nation,  were  intrusted  to  the  general  government;  and  a  gov- 
ernment intrusted  with  such  ample  powers,  on  the  due  execution  of 
which  the  happiness  and  prosperity  of  the  people  vitally  depended, 
must  also  be  intrusted  with  ample  means  of  their  execution.  Unless 
the  words  imperiously  require  it,  we  ought  not  to  'adopt  a  construction 
which  would  impute  to  the  framers  of  the  constitution,  when  granting 
great  powers  for  the  public  good,  the  intention  of  impeding  their  exer- 
cise by  withholding  a  choice  of  means.  The  powers  given  to  the 
government  imply  the  ordinary  means  of  execution ;  and  the  govern- 
ment, in  all  sound  reason  and  fair  interpretation,  must  have  the  choice 
of  the  means  which  it  deems  the  most  convenient  and  appropriate  to 
the  execution  of  the  power.  The  constitution  has  not  left  the  right 
of  Congress  to  employ  the  necesssary  means  for  the  execution  of  its 
powers  to  general  reasoning.  Art.  I,  Sect.  8,  of  the  constitution, 
expressly  confers  on  Congress  the  power  '  to  make  all  laws  that  may 
be  necessary  and  proper  to  carry  into  execution  the  foregoing  powers.' 
"  Congress  may  employ  such  means  and  pass  such  laws  as  it  may 
deem  necessary  to  carry  info  execution  great  powers  granted  by  the 
constitution  ;  and  necessary  means,  in  the  sense  of  the  constitution, 
does  not  import  an  absolute  physical  necessity,  so  strong  that  one 
thing  cannot  exist  without  the  other.  It  stands  for  any  means  calcu- 
lated to  produce  the  end.  The  word  necessary  admits  of  all  degress 
of  comparison.  A  thing  may  be  necessary,  or  very  necessary,  or 
absolutely  or  indispensably  necessary.  The  word  is  used  in  various 
senses,  and  in  its  construction  the  subject,  the  context,  the  intention, 
are  all  to  be  taken  into  view.  The  powers  of  the  government  were 
given  for  the  welfare  of  the  nation.  They  were  intended  to  endure 
for  ag^s  to  come,  and  to  be  adapted  to  the  various  crises  in  human 
affairs.  To.  prescribe  the  specific  means  by  which  government  should 


WAR   POWERS   OF    CONGRESS.  37 

in  all  future  time  execute  itsjpower,  and  to  confine  the  choice  of  m Jans 
to  such  narrow  limits  as  should  not  leave  it  in  the  power  of  Congress 
to  adopt  any  which  might  be  appropriate  and  conducive  to  the  end, 
would  be  most  unwise  and  pernicious,  because  it  would  be  an  attempt 
to  provide,  by  immutable  rules,  for  exigencies  which,  if  foreseen  at 
all,  must  have  been  foreseen  dimly,  and  would  deprive  the  legislature 
of  the  capacity  to  avail  itself  of  experience,  or  to  exercise  its  reason, 
and  accommodate  its  legislation  to  circumstances.  If  the  end  be  legit- 
imate, and  within  the  scope  of  the  constitution,  all  means  which  are 
appropriate,  and  plainly  adapted  to  this  end,  and  which  are  not  pro- 
hibited by  the  constitution,  are  lawful."  * 

. 

Guided  by  these  principles  of  interpretation,  it  is 
obvious  that  if  the  confiscation  of  property,  or  the  liber- 
ation of  slaves  of  rebels,  be  "  plainly  adapted  to  the  end," 
—  that  is,  to  the  suppression  of  rebellion,  —  it  is  within 
the  power  of  Congress  to  pass  laws  fotf  those  purposes. 
Whether  they  are  adapted  to  produce  that  result  is  for 
the  legislature  alone  to  decide.  But,  in  considering  the 
war  powers  conferred  upon  that  department  of  govern- 
ment, a  broad  distinction  is  to  be  observed  between 
confiscation  or  emancipation  laws,  passed  in  time  of 
peace,  for  the  punishment  of  crime,  and  similar  laws, 
passed  in  time  of  war,  to  aid  the  President  in  suppress- 
ing rebellion,  in  carrying  on  a  civil  war,  and  in  securing 
"  the  public  welfare "  and  maintaining  the  "  common 
defence  "  of  the  country.  Congress  may  pass  such  Jaws 
in  peace  or  in  war  as  are  within  the  general  powers  con- 
ferred on  it,  unless  they  fall  within  some  express  pro- 
hibition of  the  constitution.  If  confiscation. or  emanci- 
pation laws  are  enacted  under  the  war  powers  of  Con- 
gress, we  must  determine,  in  order  to  test  their  validity, 
whether,  in  suppressing  a  rebellion  of  colossal  pro- 
portions, the  United  States  are,  within  the  meaning  of 

*  On  the  interpretation  of  constitutional  power,  see  1  Kent's  Com.  351, 
352  j  McCulloch  v.  The  State  of  Maryland,  4  Wheat.  R.  413-420. 


00  CONSTITUTION    OF   THE   UNITED    STATES. 

the  constitution,  cd  war  with  its  own  citizens  ?  whether 
confiscation  and  emancipation  are  sanctioned  as  belli- 
gerent rights  by  the  law  and  usage  of  civilized  nations  ? 
and  whether  our  government  has  full  belligerent  rights 
against  its  rebellious  subjects  ? 

ARE    THE  UNITED  STATES  AT   WAR? 

War  may  originate  in  either  of  several  ways.  The 
navy  of  a  European  nation  may  attack  an  American 
frigate  in  a  remote  sea.  Hostilities  then  commence 
without  any. invasion  of  the  soil  of  America,  or  any 
insurrection  of  its  inhabitants.  A  foreign  power  may 
send  troops  into  our  territory  with  hostile  intent,  and 
without  declaration  of  war ;  yet  war  would  exist  solely 
by  this  act  of  invasion.  Congress,  on  one  occasion, 
passed  a  resolution  that  "war  existed  by  the  act  of 
Mexico ; "  but  no  declaration  of  war  had  been  made 
by  either  belligerent.  Civil  war  may  commence  either 
as  a  general  armed  insurrection  of  slaves,  a  servile 
war;  or  as  an  insurrection  of  their  masters,  a  re- 
bellion; or  as 'an  attempt,  by  a  considerable  portion 
of  the  subjects,  to  overthrow  their  government  — 
which  attempt,  if  successful,  is  termed  a  revolution. 
Civil  war,  within  the  meaning  of  the  constitution, 
exists  also  whenever  any  combination  of  citizens  is 
formed  to  resist  generally  the  execution  of  any  one  or 
of  all  the  laws  of  the  United  States,  if  accompanied  with 

overt  acts  to  give  that  resistance  effect. 

. 

DECLARATION     OF    WAR    NOT     NECESSARY    ON    THE    PART    OF    THE 
GOVERNMENT  TO   GIVE  IT  FULL  BELLIGERENT    POWERS. 

A  state  of  war  may  exist,  arising  in  either  of  the  modes 
above  mentioned,  without  a  declaration  of  war  by  either 
of  the  hostile  parties.  Congress  has  the  sole  power, 
under  the  constitution,  to  make  that  declaration,  and 


WAR   POWERS    OF    Cm7GRESS.  39 

to  sanction  or.  authorize  the  commencement  of  offensive 

•*/ 

war.     If  the  United  States  commence  hostilities  agrainst 

o 

a  foreign  nation,  such  commencement  is  by  proclamation, 
which  is  equivalent  to  a  declaration  of  war.  But  this  is 
quite  a  different  case  from  a  defensive  or  a  civil  war.  The 
constitution  establishes  the  mode  in  which  this  govern- 
ment shall  commence  wars,  and  what  authority  shall  ordain, 
and  what  declarations  shall  precede,  any  act  of  hostility ; 
i»ut  it  has  no  power  to  prescribe  the  manner  in  which 
others  should  begin  war  against  us.  *  Hence  it  follows, 
that  when  war  is  commenced  against  this  country,  by 
aliens  or  by  citizens,  no  declaration  of  war  by  the  gov- 
ernment is  necessary.  The  fact  that  war  is  levied 
against  the  United  States,  makes  it  the  duty  of  the 
President  to  call  out  the  army  or  navy  to  subdue  the 
enemy,  whether  foreign  or  domestic.  The  chief  object 
of  a  declaration  of  war  is  to  give  notice  thereof  to 
neutrals,  in  order  to  fix  their  rights,  and  liabilities  to 
the  hostile  powers,  and  to  give  to  innocent  parties 
reasonable  time  to  withdraw  their  persons  and  property 
from  danger.  If  the  commander-in-chief  could  not 
call  out  his  forces  to  repel  an  invasion  until  Congress 
should  have  made  a  formal  declaration  of  war,  a  foreign 
army  might  march  from  Canada  to  the  Gulf  before 
such  declaration  could  be  made,  if  it  should  com- 
mence the  campaign  while  Congress  was  not  in  ses- 
sion. Before  a  majority  of  its  members  could  be 
convened,  our  navy  might  be  swept  from  the  seas. 
The  constitution,  made  as  it  was  by  men  of  sense, 
never  leaves  the  nation  powerless  for  self-defence. 
That  instrument,  which  gives  the  legislature  authority 
to  declare  war,  whenever  war  is  initiated  by  the  United 
States,  also  makes  it  the  duty  of  the  President,  as  com- 


40  CONSTITUTION    OP   THE   UNITED    STATES. 

mander-in-chief,  to  engage  promptly  and  effectually  in 
war ;  or,  in  other  words,  to  make  the  United  States  a 
belligerent  nation,  without  declaration  of  war,  or  any 
other  act  of  Congress,  whenever  he  is  legally  called 
upon  to  suppress  rebellion,  repel  invasion,  or  to  execute 
the  laws  against  armed  and  forcible  resistance  thereto. 
The  President  has  his  duty,  Congress  have  theirs  ;  they 
are  separate,  and  in  some  respects  independent.  Noth- 
ing is  clearer  than  this,  that  when  such  a  state  of  hos^ 
tilities  exists  as  justifies  the  President  in  calling  the 
army  into  actual  service,  without  the  authority  of  Con- 
gress, no  declaration  of  war  is  requisite,  either  in  form  or 
substance,  for  any  purpose  whatsoever.  Hence  it  fol- 
lows, that  government,  while  engaged  in  suppressing  a 
rebellion,  is  not  deprived  of  the  rights  of  a  belligerent 
against  rebels,  by  reason  of  the  fact  that  no  formal  decla- 
ration of  war  has  been  made  against  them,  as  though 
they  were  an  alien  enemy,  —  nor  by  reason  of  the  cir- 
cumstance that  this  great  civil  war  originated,  so  far  as 
we  are  parties  to  it,  in  an  effort  to  resist  an  armed 
attack  of  citizens  upon  the  soldiers  and  the  forts  of  the 
United  States.  It  must  not  be  forgotten  that  by  the 
law  of  nations  and  by  modern  usage,  no  formal  declaration 
of  war  to  the  enemy  is  made  or  deemed  necessary.*  All 
that  is  now  requisite  is  for  each  nation  to  make  suita- 
ble declarations  or  proclamations  to  its  own  citizens,  to 
enable  them  to  govern  themselves  accordingly.  These 
have  been  made  by  the  President. 

HAS   GOVERNMENT  FULL  WAR    POWERS  AGAINST   REBEL    CITIZENS  :' 

Some  persons   have    questioned    the   right   of    the 
United  States  to  make  and  carry  on  war  against  citi- 

*  See  1  Kent's  Com.  p.  54. 


WAR   POWERS   OF   CONGRESS.  41 

zens  and  subjects  of  this  country.  Conceding  that  the 
President  may  be  authorized  to  call  into  active  service 
the  navy  and  army  "to  repel  invasion,  or  suppress 
rebellion,"  they  neither  admit  that  suppressing  rebel- 
lion places  the  country  in  the  attitude  of  making  war 
on  rebels,  nor  that  the  commander-in-chief  has  the  con- 
stitutional right  of  conducting  his  military  operations 
as  he  might  do  if  he  were  actually  at  war  (in  the  ordi- 
nary sense  of  the  term)  against  an  alien  enemy.  Mis- 
apprehension of  the  meaning  of  the  constitution  on 
this  subject  has  led  to  confusion  in  the  views  of  some 
members  of  Congress  during  the  last  session,  and  has  in 
no  small  degree  emasculated  the  efforts  of  the  majority 
in  dealing  with  the  questions  of  emancipation,  confisca- 
tion, and  enemy's  property. 

Some  have  assumed  that  the  United  States  are  not 
cd  ivar  with  rebels,  and  that  they  have  no  authority  to 
exercise  the  rights  of  war  against  them.  They  admit 
that  the  army  has  been  lawfully  called  into  the  field, 
and  may  kill  those  who  oppose  them;  they  concede 
that  rebels  may  be  taken  captive,  their  gunboats  may 
be  sunk,  and  their  property  may  be  seized ;  that  mar- 
tial law  may  be  declared  in  rebellious  districts,  and  its 
pains  and  penalties  may  be  enforced ;  that  every  armed 
foe  may  be  swept  out  of  the  country  by  military 
power.  Yet  they  entertain  a  vague  apprehension  that 
something  in  the  constitution  takes  away  from  these 
military  proceedings,  in  suppressing  rebellion  and  in 
resisting  the  attacks  of  the  rebels,  the  quality  and 
character  of  warfare.  All  these  men  in  arms  are  not, 
they  fancy,  "  maJcing  war"  When  the  citizens  of  Charles- 
ton bombarded  Fort  Sumter,  and  captured  property 
exclusively  owned  by  the  United  States,  it  is  not 
6 


42  CONSTITUTION    OF    THE   UNITED   STATES. 

denied  that  they  were  "  waging  war "  upon  the  govern- 
ment. When  Major  Anderson  returned  the  enemy's 
fire  and  attempted  to  defend  the  fort  and  the  guns 
from  capture,  it  is  denied  that  the  country  was  "  waging 
war."  While  other  nations,  as  well  as  our  own,  had 
formally  or  informally  conceded  to  the  rebels  the  char- 
acter and  the  rights  usually  allowed  to  belligerents, — 
that  is,  to  persons  making  war  on  tis,  —  we,  according  to 
the  constitutional  scruple  above  stated,  were  not  enti- 
tled to  the  rights  of  belligerents  against  them.  It 
therefore  becomes  important  to  know  what,  according 
to  the  constitution,  the  meaning  of  the  term  "  levying 
war  "  really  is ;  and  as  the  military  forces  of  this  country 
are  in  actual  service  to  suppress  rebellion,  whether  such 
military  service  is  making  war  upon  its  own  citizens  ;  and 
if  war  actually  exists,  whether  there  is  any  thing  in  the 
constitution  that  limits  or  controls  the  full  enjoyment 
and  exercise  by  the  government  of  the  rights  of  a  bel- 
ligerent against  the  belligerent  enemy  ? 
• 

IS  "SUPPRESSING  REBELLION"  BY  ARMS  MAKING  WAR  ON  THE 
CITIZENS  OF  THE  UNITED  STATES,  IN  THE  SENSE  OF  THE  CON- 
STITUTION? 

To  "repel  invasion"  by  arms,  all  admit,  is  entering 
upon  defensive  war  against  the  invader.  War  exists 
wherever  and  whenever  the  army  or  navy  is  in  active 
service  against  a  public  enemy. 

When  rebels  are  organized  into  armies  in  large  num- 
bers, overthrow  the  government,  invade  the  territory 
of  States  not  consenting  thereto,  attack,  and  seize,  and 
confiscate  the  property  not  of  the  government  only,  but 
of  all  persons  who  continue  loyal,  such  proceedings 
constitute  war  in  all  its  terrors  —  a  war  of  subjugation 


WAR   POWERS    OF    CONGRESS.  43 

and  of  conquest,  as  well  as  of  rebellion.  Far  less  than 
these  operations  constitutes  the  levying  of  tvar,  as  those 
terms  are  explained  in  the  language  of  the  consti- 
tution. 

"  War  is  levied"  on  the  United  States  wherever  and 
whenever  the  crime  of  treason  is  committed,  (see  Con- 
stitution, Art.  III.,  Sect.  3,  Cl.  3,)  and  -under  that  clause, 
as  interpreted  by  the  Supreme  Court,  "war  is  levied" 
when  there  exists  a  combination  resorting  to  overt  acts 
to  oppose  generally  the  execution  of  any  law  of  the 
United  States,  even  if  no  armed  force  be  used.  The  lan- 
guage of  the  constitution  is  clear  and  express.  "  Trea- 
son shall  consist  only  in  levying  war  upon  the  United 
States,  or  in  giving  aid  and  comfort  to  the  enemy." 
If,  therefore,  any  person,  or  collection  of  persons,  have 
committed  the  crime  of  treason,  the  constitution  de- 
clares them  to  have  levied  ivar.  As  traitors  they  have 
become  belligerent,  or  war  levying  enemies. 

War  may  be  waged  against  the  government  or  by  the 
government;  it  may  be  either  offensive  or  defensive. 
Wherever  war  exists  there  must  be  two  parties  to  it. 
If  traitors  (belligerents  by  the  terms  of  the  constitu- 
tion) are  one  party,  the  government  is  the  other  party. 
If,  when  treason  is  committed,  any  body  is  at  war,  then 
it  follows  that  the  United  States  are  at  war.  The 
inhabitants  of  a  section  of  this  country  have  issued  a 
manifesto  claiming  independence ;  they  have  engaged 
in  open  war  on  land  and  sea  to  maintain  it ;  they  have 
invaded  territory  of  peaceful  and  loyal  sections  of  the 
Union ;  they  have  seized  and  confiscated  ships,  arsenals, 
arms,  forts,  public  and  private  property  of  our  govern- 
ment and  people,  a'nd  have  killed,  captured,  and  impris- 
onod  soldiers  and  private  citizens.  Of  the  million  of 


44  CONSTITUTION    OF   THE   UNITED    STATES. 

men  in  arms,  are  those  on  one  side  levying  war,  and 
are  those  opposed  to  them  not  levying  war  ? 

As  it  takes  two  parties  to  carry  on  war,  either  party 
may  begin  it.  That  party  which  begins  usually  de- 
clares war.  But  when  it  is  actually  begun,  the  party 
attacked  is  as  much  at  war  as  the  party  who  made  the 
attack.  The  United  States  are  AT  WAR  with  rebels,  in 
the  strictly  legal  and  constitutional  sense  of  the  term, 
and  have  therefore  all  the  rights  against  them  which 
follow  from  a  state  of  war,  in  addition  to  those  which 
are  derived  from  the  fact  that  the  rebels  are  also 
subjects. 

KEBELS  MAY  BE  TREATED  AS  BELLIGERENTS  AND  AS  SUBJECTS. 

Wars  may  be  divided  into  two  classes,  foreign  and 
civil.  In  all  civil  wars  the  government  claims  the  bel- 
ligerents, on  both  sides,  as  subjects,  and  has  the  legal 
right  to  treat  the  insurgents  both  as  subjects  and  as 
belligerents ;  and  they  therefore  may  exercise  the  full 
and  untrammelled  powers  of  war  against  their  subjects, 
or  they  may,  in  their  discretion,  relieve  them  from  any 
of  the  pains  and  penalties  attached  to  either  of  these 
characters.  The  right  of  a  country  to  treat  its  rebel- 
lious citizens  both  as  belligerents  and  as  subjects  has  long 
been  recognized  in  Europe,  and  by  the  Supreme  Court 
of  the  United  States.  In  the  civil  war  between  St. 
Domingo  and  France,  such  rights  were  exercised,  and 
were  recognized  as  legitimate  in  Rose  v.  Himely,  4 
Cranch,  272.  So  in  Cherriot  v.  Foussatt,  3  Binney,  252. 
In  Dobrie  v.  Napier,  3  Scott  R  225,  it  was  held  that  a 
blockade  of  the  coast  of  Portugal,  by  the  Queen  of 
that  country,  was  lawful,  and  a  vessel  was  condemned 
as  a  laivful  prize  for  running  the  blockade.  The  cases 


WAR   POWERS   OF   CONGRESS.  45 

of  the  Santisima  Trinidad,  7  Wheat.  306,  and  United 
States  v.  Palmer,  3  W.  635,  confirm  this  doctrine.  By 
the  terms  of  the  constitution  defining  treason,  a  traitor 
must  be  a  subject  and  a  belligerent,  and  none  but  a  belliger- 
ent subject  can  be  a  traitor. 

The  government  have  in  fact  treated  the  insurgents 
as  belligerents  on  several  occasions,  without  recognizing 
them  in  express  terms  as  such.  They  have  received 
the  capitulation  of  rebels  at  Hatteras,  as  prisoners  of 
war,  in  express  terms,  and  have  exchanged  prisoners 
of  war  as  such,  and  have  blockaded  the  coast  by 
military  authority,  and  have  officially  informed  other 
nations  of  such  blockade,  and  of  their  intention  to 
make  it  effective,  under  the  present  law  of  nations. 
They  have  not  exercised  their  undoubted  right  to 
repeal  the  laws  making  either  of  the  blockaded  har- 
bors ports  of  entry.  They  have  relied  solely  on  their 
belligerent  rights,  under  the  law  of  nations. 

Having  thus  the  full  powers  and  right  of  making 
and  carrying  on  war  against  rebels,  both  as  subjects 
and  as  belligerents,  this  right  frees  the  President  and 
Congress  from  the  difficulties  which  might  arise  if 
rebels  could  be  treated  only  as  SUBJECTS,  and  if  war 
could  not  be  waged  upon  them.  If  conceding  to  rebels 
the  privileges  of  belligerents  should  relieve  them  from 
some  of  the  harsher  penalties  of  treason,  it  will  subject 
them  to  the  liabilities  of  the  belligerent  character. 
The  privileges  and  the  disadvantages  are  correlative. 
But  it  is  by  no  means  conceded  that  the  government 
may  not  exercise  the  right  of  treating  the  same  rebels 
both  as  subjects  and  as  belligerents.  The  constitution 
defines  a  rebel  who  commits  treason  as  one  who  "  levies 
war "  on  the  United  States :  and  the  laws  punish  this 


46  CONSTITUTION    OF   THE   UNITED    STATES. 

highest  of  crimes  with  death,  thus  expressly  ti  eating 
the  same  person  as  subject  and  as  belligerent.  Those  who 
save  their  necks  from  the  halter  by  claiming  to  be 
treated  as  prisoners  of  war,  and  so  to  protect  them- 
selves under  the  shield  of  belligerent  rights,  must  bear 
the  weight  of  that  shield,  and  submit  to  the  legal  con- 
sequences of  the  character  they  claim.  They  cannot 
sail  under  two  flags  at  the  same  time.  But  a  rebel 
does  not  cease  to  be  a  subject  because  he  has  turned 
traitor.  The  constitution  expressly  authorizes  Congress 
to  pass  laws  to  punish  traitor — that  is,  belligerent  — 
subjects ;  and  suppressing  rebellion  by  armed  force  is 
making  war.  Therefore  the  war  powers  of  government 
give  full  belligerent  rights  against  rebels  in  arms. 

THE  LAW  OF   NATIONS  IS  ABOVE   THE   CONSTITUTION. 

Having  shown  that  the  United  States  being  actually 
engaged  in  civil  war,  —  in  other  words,  having  become  a 
belligerent  power,  without  formal  declaration  of  war,  — 
it  is  important  to  ascertain  what  some  of  the  rights  of 
belligerents  are,  according  to  the  law  of  nations.  It  will 
be  observed  that  the  law  of  nations  is  above  the  con- 
stitution of  any  government;  and  no  people  would  be 
justified  by  its  peculiar  constitution  in  violating  the 
rights  of  other  nations.  Thus,  if  it  had  been  provided 
in  the  Articles  of  Confederation,  or  in  the  present  con- 
stitution, that  all  citizens  should  have  the  inalienable 
right  to  practise  the  profession  of  piracy  upon  the  ships 
and  property  of  foreign  nations,  or  that  they  should  be 
lawfully  empowered  to  make  incursions  into  England, 
France,  or  other  countries,  and  seize  by  force  and  bring 
home  such  men  and  women  as  they  should  select,  and, 
if  these  privileges  should  be  put  in  practice,  England 


WAR   POWERS    OF    CONGRESS.  47 

and  France  would  be  justified  in  treating  us  as  a  nest 
of  pirates,  or  a  band  of  marauders  and  outlaws.  The 
whole  civilized  world  would  turn  against  us,  and  we 
should  justly  be  exterminated.  An  association  or 
agreement  on  our  part  to  violate  the  rights  of  others, 
by  whatever  name  it  may  be  designated,  whether  it  be 
called  a  constitution,  or  league,  or  conspiracy,  or  a  do- 
mestic institution,  is  no  justification,  under  the  law  of 
nations,  for  illegal  or  immoral  acts. 

INTERNATIONAL   BELLIGERENT    RIGHTS    ARE    DETERMINED   BY    THE 
*      LAW    OF  NATIONS. 

To  determine  what  are  the  rights  of  different  nations 
when  making  war  upon  each  other,  we  look  only  to 
the  law  of  nations.  The  peculiar  forms  or  rights  of 
the  subjects  of  one  of  these  war-making  parties  under 
their  own  government  give  them  no  rights  over  their 
enemy  other  than  those  which  are  sanctioned  by  in- 
ternational law.  In  the  great  tribunal  of  nations,  there 
is  a  "  higher  law "  than  that  which  has  been  framed 
by  either  one  of  them,  however  sacred  to  each  its 
own  peculiar  laws  and  constitution  of  government 
may  be. 

But  while  this  supreme  law  is  in  full  force,  and  is 
binding  on  all  countries,  softening  the  asperities  of  war, 
and  guarding  the  rights  of  neutrals,  it  is  not  conceded 
that  the  government  of  the  United  States,  in  a  civil 
war  for  the  suppression  of  rebellion  among  its  own  cit- 
izens, is  subject  to  the  same  limitations  as  though  the 
rebels  were  a  foreign  nation,  owing  no  allegiance  to 
the  country. 

With  this  caveat,  it  will  be  desirable  to  state  some 
of  the  rights  of  belligerents. 


48  CONSTITUTION    OF   THE   UNITED    STATES. 

BELLIGERENT  EIGHT  OF  CONFISCATION  OF  PERSONAL  ESTATE. 

Either  belligerent  may  seize  and  confiscate  aU  the  property 
of  the  enemy,  on  land  or  on  the  sea,  including  real  as  well  as 
personal  estate. 

PRIZE  COURTS. 

As  the  property  of  all  nations  has  an  equal  right 
upon  the  high  seas,  (the  highway  of  nations,)  in  order 
to  protect  the  commerce  of  neutrals  from  unlawful 
interference,  it  is  necessary  that  ships  and  cargoes 
seized  on  the  ocean  should  be  brought  before  some  prize 
court,  that  it  may  be  judicially  determined  whether 
the  captured  vessel  and  cargo  were,  in  whole  or  in  part, 
enemy's  property  or  contraband  of  war.  The  decision 
of  any  prize  court,  according  to  the  law  of  nations,  is  con- 
clusive against  all  the  world.  Where  personal  property 
of  the  enemy  is  captured  from  the  enemy,  on  land,  in  the 
enemy's  country,  no  decision  of  any  court  is  necessary 
to  give  a  title  thereto.  Capture  passes  the  title.  This 
is  familiar  law  as  administered  in  the  courts  of  Europe 
and  America.* 

TITLE  BY  CAPTURE. 

Some  persons  have  questioned  whether  title  passes 
in  this  country  by  capture  or  confiscation,  by  reason  of 
some  of  the  limiting  clauses  of  the  constitution ;  and 
others  have  gone  so  far  as  to  assert  that  all  the  pro- 
ceedings under  martial  law,  such  as  capturing  enemy's 
property,  imprisonment  of  spies  and  traitors,  and  seizures 
of  articles  contraband  of  war,  and  suspending  the  habeas 
corpus,  are  in  violation  of  the  constitution,  which  de- 
clares that  no  man  shall  be  deprived  of  life,  liberty,  or 

*  Alexander  v.  Duke  of  Wellington,  2  Buss.  &  Mylne,  35.  Lord  Brougham 
said  that  military  prize  rests  upon  the  same  principles  of  law  as  prize 
at  sea,  though  in  general  no  statute  passes  with  respect  to  it.  See  1 
Kent's  Comm.  357. 


WAR   POWERS   OF   CONGRESS.  49 

property  without  due  process  of  law ;  *  that  private 
property  shall  not  be  taken  for  public  use  without  just 
compensation ;  f  that  unreasonable  searches  and  seiz- 
ures shall  not  be  made  ;  J  that  freedom  of  speech  and 
of  the  press  shall  not  be  abridged ;  §  and  that  the 
right  of  the  people  to  keep  and  bear  arms  shall  not  be 
infringed.  || 

THESE  PROVISIONS  LNOT   APPLICABLE  TO  A  STATE   OP  WAR. 

If  these  rules  are  applicable  to  a  state  of  war,  then 
capture  of  property  is  illegal,  and  does  not  pass  a  title ; 
no  defensive  war  can  be  carried  on;  no  rebellion  can 
be  suppressed ;  no  invasion  can  be  repelled ;  the  army 
of  the  United  States,  when  called  into  the  field,  can  do 
no  act  of  hostility.  Not  a  gun  can  be  fired  constitu- 
tionally, because  it  might  deprive  a  rebel  foe  of  his  life 
without  due  process  of  law  —  firing  a  gun  not  being 
deemed  "  due  process  of  law." 

Sect.  4  of  Art.  IV.  says,  that  "  the  United  States  shall 
guarantee  to  every  State  in  this  Union  a  republican 
form  of  government,  and  shall  protect  each  of  them 
against  invasion,  and,  on  application  of  the  legislature, 
or  of  the  Executive,  when  the  legislature  cannot  be 
convened,  against  domestic  violence." 

Art.  I.  Sect.  8,  gives  Congress  power  to  declare  war, 
raise  and  support  armies,  provide  and  maintain  a  navy ; 
to  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrection  and  repel  in- 
vasion ;  to  provide  for  organizing,  arming,  and  disciplin- 
ing the  militia,  and  for  governing  such  part  of  them  as 
may  be  in  the  service  of  the  United  States. 

*  Constitutional  Amendments,  Art.  V.  f  Ibid.  Art.  V. 

j  Ibid.  Art.  IV.  §  Ibid.  Art.  I.  ||  Ibid.  Art.  LL 

7 


50  CONSTITUTION    OF   THE   UNITED    STATES. 

If  these  rules  above  cited  have  any  application  in  a 
time  of  war,  the  United  States  cannot  protect  each  of  the 
States  from  invasion  by  citizens  of  other  States,  nor 
against  domestic  violence ;  nor  can  the  army,  or  militia, 
or  navy  be  used  for  any  of  the  purposes  for  which  the 
constitution  authorizes  or  requires  their  employment. 
If  all  men  have  the  right  to  "keep  and  bear  arms," 
what  right  has  the  army  of  the  Union  to  take  them 
away  from  rebels  ?  If  "  no  one  can  constitutionally 
be  deprived  of  life,  liberty,  or  property,  without  due 
process  of  law,"  by  what  right  does  government  seize 
and  imprison  traitors  ?  By  what  right  does  the  army 
.kill  rebels  in  arms,  or  burn  up  their  military  stores? 
If  the  only  way  of  dealing  constitutionally  with  rebels 
in  arms  is  to  go  to  law  with  them,  the  President  should 
convert  his  army  into  lawyers,  justices  of  the  peace, 
and  constables,  and  serve  "  summonses  to  appear  and 
answer  to  complaints,"  instead  of  a  summons  to  surrender. 
He  should  send  u  GREETINGS  "  instead  of  sending  rifle  shot. 
He  should  load  his  caissons  with  "  pleas  in  abatement 
and  demurrers,"  instead  of  thirty-two  pound  shell  and 
grape  shot.  In  short,  he  should  levy  writs  of  execution, 
instead  of  levying  war.  On  the  contrary,  the  com- 
mander-in-chief  proposes  a  different  application  of  the 
due  process  of  law.  His  summons  is,  that  rebels  should 
lay  down,  their  arms ;  his  pleas  are  batteries  and  gun- 
boats ;  his  arguments  are  hot  shot,  and  always  "  to  the 
point ; "  and  when  his  fearful  execution  is  "  levied  on 
the  body,"  all  that  is  left  will  be  for  the  undertaker. 

TRUE  APPLICATION    OF  THESE  CONSTITUTIONAL  GUARANTEES. 

The  clauses  which  have  faeen  cited  from  the  amend- 
ments to  the  constitution  were  intended  as  declarations 


WAR   POWERS    OF   CONGRESS.  51 

of  the  rights  of  peaceful  and  loyal  citizens,  and  safe- 
guards in  the  administration  of  justice  by  the  civil  tri- 
bunals ;  but  it  was  necessary,  in  order  to  give  the  gov- 
ernment the  means  of  defending  itself  against  domestic 
or  foreign  enemies,  to  maintain  its  authority  and  dig- 
nity, and  to  enforce  obedience  to  its  laws,  that  it  should 
have  unlimited  war  powers ;  and  it  must  not  be  for- 
gotten that  the  same  authority  which  provides  those 
safeguards,  and  guarantees  those  rights,  also  imposes 
upon  the  President  and  Congress  the  duty  of  so  carry- 
ing on  war  as  of  necessity  to  supersede  and  hold  in 
temporary  suspense  such  civil  rights  as  may  prove  in- 
consistent with  the  complete  and  effectual  exercise  of 
such  war  powers,  and  of  the  belligerent  rights  result- 
ing from  them.  The  rights  of  war  and  the  rights  of 
peace  cannot  coexist.  One  must  yield  to  the  other. 
Martial  law  and  civil  law  cannot  operate  at  the  same 
time  and  place  upon  the  same  subject  matter.  Hence 
the  constitution  is  framed  with  full  recognition  of  that 
fact ;  it  protects  the  citizen  in  peace  and  in  war ;  but 
his  rights  enjoyed  under  the  constitution,  in  time  of 
peace  are  different  from  those  to  which  he  is  entitled 
in  time  of  war. 

\FHETHER    BELLIGERENTS  SHALL  BE  ALLOWED  CIVIL  RIGHTS  UNDER 
THE  CONSTITUTION    DEPENDS    UPON  THE  POLICY  OF  GOVERNMENT. 

None  of  these  rights,  guaranteed  to  peaceful  citizens,  ly  the 
constitution  belong  to  them  after  they  have  become  belligerents 
against  their  own  government.  They  thereby  forfeit  all 
protection  under  that  sacred  charter  which  they  have 
thus  sought  to  overthrow  and  destroy.  One  party  to 
a  contract  cannot  break  it  and  at  the  same  time  hold 
the  other  to  perform  it.  It  is  true  that  if  the  govern- 


52  CONSTITUTION   OF   THE   UNITED    STATES. 

ment  elects  to  treat  them  as  subjects  and  to  hold  them 
liable  only  to  penalties  for  violating  statutes,  it  must 
concede  to  them  all  the  legal  rights  and  privileges 
which  other  citizens  would  have  when  under  similar 
accusations  ;  and  Congress  must  be  limited  to  the  pro- 
visions of  the  constitution  in  legislation  against  them 
as  citizens.  But  the  fact  that  war  is  waged  by  these 
miscreants  releases  the  government  from  all  obligation 
to  make  that  concession,  or  to  respect  the  rights  to  life, 
liberty,  or  property  of  its  enemy,  because  the  constitu- 
tion makes  it  the  duty  of  the  President  to  prosecute 
war  against  them  in  order  to  suppress  rebellion  and 
repel  invasion. 

THE  CONSTITUTION  ALLOWS  CONFISCATION. 

Nothing  in  the  constitution  interferes  with  the  bel- 
ligerent right  of  confiscation  of  enemy  property.  The 
right  to  confiscate  is  derived  from  a  state  of  war.  It  is 
one  of  the  rights  of  war.  It  originates  in  the  principle 
of  self-preservation.  It  is  the  means  of  weakening  the 
enemy  and  strengthening  ourselves.  The  right  of  con- 
fiscation belongs  to  the  government  as  the  necessary 
consequence  of  the  power  and  duty  of  making  war  — 
offensive  or  defensive.  Every  capture  of  enemy  am- 
munition or  arms  is,  in  substance,  a  confiscation,  with- 
out its  formalities.  To  deny  the  right  of  confiscation 
is  to  deny  the  right  to  make  war,  or  to  conquer  an 
enemy. 

If  authority  were  needed  to  support  the  right  of  con- 
fiscation, it  may  be  found  in  3  Dallas,  227 ;  Vat.  lib. 
iii.,  ch.  8,  sect.  188;  lib.  iii.,  ch.  9,  sect.  161;  Smith  v. 
Mansfield,  Cranch,  306-7 ;  Cooper  v.  Telfair,  4  Dallas ; 
Brown  v.  U.  S.,  8  Cranch,  110,  228,  229. 


WAR   POWERS    OP   CONGRESS.  53 

The  following  extract  is  from  1  Kent's  Com.,  p.  59  — • 

"  But  however  strong  the  current  of  authority  in  favor  of  the  mod- 
ern and  milder  construction  of  the  rule  of  national  law  on  this  subject, 
the  point  seems  to  be  no  longer  open  for  discussion  in  this  country ; 
and  it  has  become  definitively  settled  in,  favor  of  the  ancient  and 
sterner  rule  by  the  Supreme  Court  of  the  United  States.  Brown  v. 
United  States,  8  Cranch,  110 ;  ibid.  228,  229. 

"  The  effect  of  war  on  British  property  found  in  the  United  States 
on  land,  at  the  commencement  of  the  war,  was  learnedly  discussed 
and  thoroughly  considered  in  the  case  of  Brown,  and  the  Circuit  Court 
of  the  United  States  at  Boston  decided  as  upon  a  settled  rule  of  the 
law  of  nations,  that  the  goods  of  the  enemy  found  in  the  country,  and 
all  vessels  and  cargoes  found  afloat  in  our  ports  at  the  commencement 
of  hostilities,  were  liable  to  seizure  and  confiscation  ;  and  the  exercise 
of  the  right  vested  in  the  discretion  of  the  sovereign  of  the  nation. 

"  When  the  case  was  brought  up  on  appeal  before  the  Supreme 
Court  of  the  United  States,  the  broad  principle  was  assumed  that  war 
gave  to  the  sovereign  the  full  right  to  take  the  persons  and  confiscate 
the  property  of  the  enemy  wherever  found ;  and  that  the  mitigations 
of  this  rigid  rule,  which  the  wise  and  humane  policy  of  modern  times 
had  introduced  into  practice,  might,  more  or  less,  affect  the  exercise 
of  the  right,  but  could  not  impair  the  right  itself. 

"  Commercial  nations  have  always  considerable  property  in  posses- 
sion of  their  neighbors  ;  and  when  war  breaks  out,  the  question,  What 
shall  be  done  with  enemy  property  found  in  the  country  ?  is  one  rather 
of  policy  than  of  law,  and  is  one  properly  addressed  to  the  considera- 
tion of  the  legislature,  and  not  to  the  courts  of  law. 

"  The  strict  right  of  confiscation  of  that  species  of  property  existed 
in  Congress,  and  without  a  legislative  act  authorizing  its  confiscation 
it  could  not  be  judicially  condemned  ;  and  the  act  of  Congress  of  1812 
declaring  war  against  Great  Britain  was  not  such  an  act.  Until  some 
statute  directly  applying  to  the  subject  be  passed,  the  property  would 
continue  under  the  protection  of  the  law,  and  might  be  claimed  by  the 
British  owner  at  the  restoration  of  peace. 

"  Though  this  decision  established  the  right  contrary  to  much  of 
modern  authority  and  practice,  yet  a  great  point  was  gained  over  the 
rigor  and  violence  of  the  ancient  doctrine,  by  making  the  exercise  of 
the  right  depend  upon  a  special  act  of  Congress." 

From  the  foregoing  authorities,  it  is  evident  that  the 


•54  CONSTITUTION    OP   THE   UNITED    STATES. 

government  has  a  right,  as  a  belligerent  power,  to  cap- 
ture or  to  confiscate  any  and  all  the  personal  property 
of  the  enemy ;  that  there  is  nothing  in  the  constitution 
which  limits  or  controls  the  exercise  of  that  right ;  and 
that  capture  in  war*  or  confiscation  by  law,  passes  a 
complete  title  to  the  property  taken ;  and  that,  if  judi- 
cial condemnation  of  enemy  property  be  sought,  in 
order  to  pass  the  title  to  it  by  formal  decree  of  courts, 
by  mere  seizure,  and  without  capture,  the  confiscation 
must  have  been  declared  by  act  of  Congress,  a  mere 
declaration  of  war  not  being  ex  vi  termini  sufficient  for 
that  purpose.  The  army  of  the  Union,  therefore,  have 
the  righjt,  according  to  the  law  of  nations,  and  of  the 
constitution,  to  obtain  by  capture  a  legal  title  to  all  the 
personal  property  of  the  enemy  they  get  possession 
of,  whether  it  consist  of  arms,  ammunition,  provisions, 
slaves,  or  any  other  thing  which  the  law  treats  as  per- 
sonal property.  No  judicial  process  is  necessary  to 
'give  the  government  full  title  thereto,  and  when  once 
captured,  the  government  may  dispose  of  the  property 
•as  absolute  owner  thereof,  in  the  same  manner  as 
though  the  title  passed  by  bill  of  sale :  and  Congress 
have  plenary  authority  to  pass  such  confiscation  laws 
against  belligerent  enemies  as  they  deem  for  the  public 
good. 

MILITARY  GOVERNMENT  UNDER  MARTIAL  LAW. 

In  addition  to  the  right  of  confiscating  personal  property 
of  the  enemy,  a  state  of  war  also  confers  upon  the 
government  other  not  less  important  belligerent  rights, 
and  among  them,  the  right  to  seize  and  hold  conquered 
territory  by  military  force,  and  of  instituting  and  main- 
taining military  government  over  it,  thereby  suspend- 
ing in  part,  or  in  the  whole,  the  ordinary  civil  adminis- 


WAR   POWERS   OF   CONGRESS.  55 

tration.  The  exercise  of  this  right  has  been  sanctioned 
by  the  decision  of  the  Supreme  Court  of  the  United 
States,  in  the  case  of  California.*  And  it  is  founded  upon 
•well-established  doctrines  of  the  law  of  nations.  Without 
the  right  to  make  laws  and  administer  justice  in  con- 
quered territory,  the  inhabitants  would  be  plunged  into 
anarchy.  The  old  government  being  overthrown,  and  no 
new  one  being  established,  there  would  be  none  to  whom 
allegiance  would  be  due — none  to  restrain  lawlessness, 
none  to  secure  to  any  persons  any  civil  rights  what- 
ever. Hence,  from  the  necessity  of  the  case,  the  con- 
queror has  power  to  establish  a  quasi  military  civil  ad- 
ministration of  government  for  the  protection  of  the 
innocent,  the  restraint  of  the  wicked,  and  the  security 
of  that  conquest  for  which  war  has  been  waged. 

It  is  under  this  power  of  holding  and  establish- 
ing military  rule  over  conquered  territory,  that  all 
provisional  governments  are  instituted  by  conquer- 
ors. The  President,  as  commander-in-chief,  has  for- 
mally appointed  Andrew  Johnson  governor  of  Ten- 
nessee, with  all  the  powers,  duties,  and  functions  per- 
taining to  that  office,  during  the  pleasure  of  the  Presi- 
dent, or  until  the  loyal  inhabitants  of  that  State  shall 
organize  a  civil  government  in  accordance  with  the  con- 
stitution of  the  United  States.  To  legalize  these  powers 
and  duties,  it  became  expedient  to  give  him  a  military 
position ;  hence  he  was  nominated  as  a  brigadier  gen- 
eral, and  his  nomination  was  confirmed  by  the  Senate. 
Mr.  Stanley  acts  as  provisional  military  governor  of  North 
Carolina,  under  similar  authority.  All.  acts  of  military 
government  which  are  within  the  scope  of  their  author- 
ity, are  as  legal  and  constitutional  as  any  other  military 

*  Cross  v.  Harrison,  16  How.  164. 


56  CONSTITUTION    OF   THE   UNITED    STATES. 

proceeding.  Hence  any  section  of  this  country,  which, 
having  joined  in  a  general  rebellion,  shall  have  been 
subdued  and  conquered  by  the  military  forces  of  the 
United  States,  may  be  subjected  to  military  govern- 
ment, and  the  rights  of  citizens  in  those  districts  are 
subject  to  martial  law,  so  long  as  the  war  lasts.  What- 
ever of  their  rights  of  property  are  lost  in  and  by 
the  war,  are  lost  forever.  No  citizen,  whether  loyal  or 
rebel,  is  deprived  of  any  right  guaranteed  to  him  in 
the  constitution  by  reason  of  his  subjection  to  mar- 
tial law,  because  martial  law,  when  in  force,  is  constitur 
tioml  hiv.  The  people  of  the  United  States,  through 
their  lawfully  chosen  commander-in-chief,  have  the  con- 
stitutional right  to  seize  and  hold  the  territory  of  a  bel- 
ligerent enemy,  and  to  govern  it  by  martial  law,  thereby 
superseding  the  local  government  of  the  place,  and  all 
rights  which  rebels  might  have  had  as  citizens  of  the 
United  States,  if  they  had  not  violated  the  laws  of  the 
land  by  making  war  upon  the  country. 

By  martial  law,  loyal  citizens  may  be  for  a  time  de- 
barred from  enjoying  the  rights  they  would  be  entitled 
to  in  time  of  peace.  Individual  rights  must  always  be 
held  subject  to  the  exigencies  of  national  safety. 

In  war,  when  martial  law  is  in  force,  the  laws  of  war 
are  the  laws  which  the  constitution  expressly  authorizes 
and  requires  to  be  enforced.  The  constitution,  when  it 
calls  into  action  martial  law,  for  the  time  changes  civil 
rights,  or  rights  which  the  citizen  would  be  entitled  to 
in  peace,  because  the  rights  of  persons  in  one  of  these 
cases  are  totally  incompatible  with  the  obligations  of 
persons  in  the  other.  Peace  and  war  cannot  exist 
together ;  the  laws  of  peace  and  of  war  cannot  operate 
together  j  the  rights  and  procedures  of  peaceful  times 


WAR   POWERS    OF    CONGRESS.  57 

are  incompatible  with  those  of  war.  It  is  an  obvious  but 
pernicious  error  to  suppose  that  in  a  state  of  war,  the 
rules  of  martial  law,  and  the  consequent  modification 
of  the  rights,  duties,  and  obligations  of  citizens,  pri- 
vate and  public,  are  not  authorized  strictly  under  the 
constitution.  And  among  the  rights  of  martial  law,  none 
is  more  familiar  than  that  of  seizing  and  establishing 
a  military  government  over  territory  taken  from  the 
enemy ;  and  the  duty  of  thus  protecting  such  territory 
is  imperative,  since  the  United  States  are  obligated  to 
guarantee  to  each  State  a  republican  form  of  govern- 
ment* That  form  of  government  having  been  over- 
thrown by  force,  the  country  must  take  such  steps, 
military  and  civil,  as  may  tend  to  restore  it  to  the  loyal 
citizens  of  that  State,  if  there  be  any ;  and  if  there 
be  no  persons  who  will  submit  to  the  constitution 
and  laws  of  the  United  States,  it  is  their  duty  to 
hold  that  State  by  military  power,  and  under  military 
rule,  until  loyal  citizens  shall  appear  there  in  sufficient 
numbers  to  entitle  them  to  receive  back  into  their  own 
hands  the  local  government. 

A  SEVERE   RULE  OF  BELLIGERENT  LAW. 

"  Property  of  persons  residing  in  the  enemy's  country 
is  deemed,  in  law,  hostile,  and  subject  to  condemnation 
without  any  evidence  as  to  the  opinions  or  predilections 
of  the  owner."  If  he  be  the  subject  of  a  neutral,  or  a 
citizen  of  one  of  the  belligerent  States,  and  has  ex- 
pressed no  disloyal  sentiments  towards  his  country, 
still  his  residence  in  the  enemy's  country  impresses 
upon  his  property,  engaged  in  commerce  and  found 
upon  the  ocean,  a  hostile  character,  and  subjects  it  to 

*  Constitution,  Art.  IV.,  Sect.  4.,  CL  1. 
8 


58  CONSTITUTION    OF   THE   UNITED    STATES. 

condemnation.  This  familiar  principle  of  law  is  sanc- 
tioned in  the  highest  courts  of  England  and  of  the 
United  States,  and  has  been  decided  to  apply  to  cases 
of  civil  as  well  as  of  foreign  war.* 

Thus  personal  property  of  every  kind,  ammunition, 
provisions,  contraband,  or  slaves,  may  be  lawfully 
seized,  whether  of  loyal  or  disloyal  citizens,  and  is  by  law 
presumed  hostile,  and  liable  to  condemnation,  if  captured 
within  the  rebellious  districts.  This  right  of  seizure  and 
condemnation  is  harsh,  as  all  the  -proceedings  of  war 
are  harsh,  in  the  extreme,  but  it  is  nevertheless  lawful. 
It  would  be  harsh  to  kill  in  battle  a  loyal  citizen  who, 
having  been  impressed  into  the  ranks  of  the  rebels,  is 
made  to  fight  against  his  country  •  yet  it  is  lawful  to 
do  so. 

Against  all  persons  in  arms,  and  against  all  property 
situated  and  seized  in  rebellious  districts,  the  laws,  of 
war  give  the  President  full  belligerent  rights;  and 
when  the  army  and  navy  are  once  lawfully  called  out, 
there  are  no  limits  to  the  war-making  power  of  the 
President,  other  than  the  law  of  nations,  and  such  rules 
as  Congress  may  pass  for  their  regulation. 

"  The  statute  of  1807,  chap.  39,"  says  a  learned  judge,f 
"provides  that  whenever  it  is  lawful  for  the  President 
to  call  forth  the  militia  to  suppress  an  insurrection,  he 
may  employ  the  land  and  naval  forces  for  that  purpose. 
The  authority  to  use  the  army  is  thus  expressly  con- 
firmed, but  the  manner  in  which  they  are  to  be  used  is 
not  prescribed.  That  is  left  to  the  discretion  of  the 
President,  guided  by  the  usages  and  principles  of  civil- 
ized war." 

..    • 

*  The  Venus,  8  Cranch  Rep.;  The  Hoop,  1  Robinson,  196,  —  and  cases 
there  cited.     The  Amy  Wat-wick,  opinion  of  Judge  Sprague. 
f  Judge  Sprague. 


WAR    POWERS    OF    CONGRESS.  59 

As  a  matter  of  expediency,  Congress  may  direct  that 
no  property  of  loyal  citizens,  residing  in  disloyal  States, 
should  be  seized  by  military  force,  without  compensa- 
tion. This  is  an  act  of  grace,  which,  though  not  re- 
quired by  the  laws  of  war,  may  well  be  granted.  The 
conimander-in-chief  may  also  grant  the  same  indul- 
gence. But  the  military  commanders  are  always  at 
liberty  to  seize,  in  an  enemy's  country,  whatever  prop- 
erty they  deem  necessary  for  the  sustenance  of  troops, 
or  military  stores,  whether  it  is  the  property  of 
friend  or  enemy ;  it  being  usual,  however,  to  pay  for 
all  that  is  taken  from  friends.  These  doctrines  have 
been  carried  into  effect  in  Missouri. 

The  President  having  adopted  the  policy  of  pro- 
tecting loyal  citizens  wherever  they  may  be  found,  all 
seizure  of  their  property,  and  all  interference  with  them, 
have  so  far  been  forborne.  But  it  should  be  understood 
that  such  forbearance  is  optional,  not  compulsory.  Jt 
is  done  from  a  sense  of  justice  and  humanity,  not  be- 
cause law  or  constitution  render  it  inevitable.  And 
this  forbearance  is  not  likely  to  be  carried  to  such  an 
extent  as  to  endanger  the  success  of  the  armies  of  the 
Union,  nor  to  despoil  them  of  the  legitimate  fruits  of 
victory  over  rebels. 

CIVIL  RIGHTS  OF  LOYAL    CITIZENS  IN  LOYAL    DISTRICTS  ARE   MODI- 
FIED BY   THE   EXISTENCE  OF  WAR. 

While  war  is  raging,  many  of  the  rights  held  sacred 
by  the  constitution  —  rights  which  cannot  be  violated  by 
any  acts  of  Congress  —  may  and  must  be  suspended  and 
held  in  abeyance.  If  this  were  not  so,  the  government 
might  itself  be  destroyed ;  the  army  and  navy  might 
be  sacrificed,  and  one  part  of  the  constitution  would 
NULLIFY  the  rest. 


60  CONSTITUTION    OF   THE   UNITED    STATES. 

If  freedom  of  speech  cannot  be  suppressed,  spies  can- 
not be  caught,  imprisoned,  and  hung. 

If  freedom  of  the  press  cannot  be  interfered  with,  all 
our  military  plans  may  be  betrayed  to  the  enemy. 

If  no  man  can  be  deprived  of  life  tvithout  trial  by  jury, 
a  soldier  cannot  slay  the  enemy  in  battle. 

If  enemy's  property  cannot  be  taken  without  "  due 
process  of  law,"  how  can  the  soldier  disarm  his  foe  and 
seize  his  weapons  ? 

If  no  person  can  be  arrested,  sentenced,  and  shot,  with- 
out trial  by  jury  in  the  county  or  State  where  his  crime 
is  alleged  to  have  been  committed,  how  can  a  deserter 
be  shot,  or  a  spy  be  hung,  or  an  enemy  be  taken  prisoner  ? 

It  has  been  said  that  " amidst  arms  the  laws  are  silent" 
It  would  be  more  just  to  say,  that  while  war  rages,  the 
rights,  which  in  peace  are  sacred,  must  and  do  give  way 
to  the  higher  right  —  the  right  of  public  safety  —  the 
right  which  the  COUNTRY,  the  whole  country,  claims  to 
be  protected  from  its  enemies,  domestic  and  foreign  — 
from  spies,  from  conspirators,  and  from  traitors.  The 
sovereign  and  almost  dictatorial  powers  —  existing 
only  in  actual  war;  ending  when  war  ends  —  to  be 
used  in  self-defence,  and  to  be  laid  down  when  the  occa- 
sion has  passed,  are,  while  they  last,  as  Iduful,  as  con- 
stitutional, as  sacred,  as  the  administration  of  justice  by 
judicial  courts  in  times  of  peace.  They  may  be  dan- 
gerous; war  itself  is  dangerous;  but  danger  does  not 
make  them  unconstitutional.  If  the  commander-in-chief 
orders  the  army  to  seize  the  arms  and  ammunition  of 
the  enemy ;  to  capture  their  persons ;  to  shell  out  their 
batteries  ;  to  hang  spies  or  shoot  deserters ;  to  destroy 
the  armed  enemy  in  open  battle ;  to  send  traitors  to 


WAR   POWERS    OF    CONGRESS.  61 

forts  and  prisons;  to  stop  the  press  from  aiding  and 
comforting  the  enemy  by  betraying  our  military  plans ; 
to  arrest  within  our  lines,  or  wherever  they  can  be 
seized,  persons  against  whom  there  is  reasonable  evi- 
dence of  their  having  aided  or  abetted  the  rebels,  or  of 
intending  so  to  do,  —  the  pretension  that  in  so  doing 
he  is  violating  the  constitution  is  not  only  erroneous, 
but  it  is  a  plea  in  behalf  of  treason.  To  set  up  the 
rules  of  civil  administration  as  overriding  and  control- 
ling the  laws  of  war,  is  to  aid  and  abet  the  enemy.  It 
falsifies  the  clear  meaning  of  the  constitution,  which 
not  only  gives  the  power,  but  makes  it  the  plain  duty 
of  the  President,  to  go  to  war  with  the  enemy  of  his 
country.  And  the  restraints  to  which  he  is  subject 
when  in  tvar,  are  not  to  be  found  in  the  municipal 
regulations,  which  can  be  administered  only  in  peace, 
but  in  the  laws  and  usages  of  nations  regulating  the 
conduct  of  war. 

BELLIGERENT  RIGHT  TO 'CONFISCATE   ENEMY'S  REAL  ESTATE. 

The  belligerent  rigJit  of  the  government  to  confiscate 
enemy's  real  estate,  situated  in  this  country,  can  hardly  admit 
of  a  question.  The  title  to  no  inconsiderable  part  of 
the  real  estate  in  each  of  the  original  States  of  the 
Union,  rests  upon  the  validity  of  confiscation  acts? 
passed  by  our  ancestors  against  loyal  adherents  to  the 
crown.  Probably  none  of  these  States  failed  to  pass 
and  apply  these  laws.  English  and  American  acts  of 
confiscation  were  recognized  by  the  laws  of  both  coun- 
tries, and  their  operation  modified  by  treaties ;  their 
validity  never  was  denied.  The  only  authority  which  either 
!)f  the  States  or  colonies  ever  had  for  passing  such 
laws  was  derived  from  the  fact  that  they  were  bel- 
ligerents. 


62  CONSTITUTION    OF    THE   UNITED    STATES. 

It  will  be  observed  that  the  question  as  to  the  belli- 
gerent right  to  confiscate  enemy's  real  estate  situated 
in  the  United  States,  is  somewhat  different  from  the 
question  whether  in  conquering  a  foreign  country  it 
will  be  lawful  to  confiscate  the  private  real  estate  of 
the  enemy. 

It  is  unusual,  in  case  of  conquest  of  a  foreign  country, 
for  the  conqueror  to  do  more  than  to  displace  its  sov- 
ereign, and  assume  dominion  over  the  country.  On  a 
mere  change  of  sovereignty  of  the  country,  it  would  be 
harsh  and  severe  to  confiscate  the  private  property 
and  annul  the  private  rights  of  citizens  generally.  And 
mere  conquest  of  a  country  does  not  of  itself  operate  as 
confiscation  of  enemy's  property ;  nor  does  the  cession 
of  a  country  by  one  nation  to  another  destroy  private 
rights  of  property,  or  operate  as  confiscation  of  per- 
sonal or  real  estate.*  So  it  was  held  by  the  Supreme 
Court  in  the  case  of  the  transfer  by  treaty  of  Florida 
to  the  United  States ;  but  it  was  specially  provided  in 
that  treaty  that  private  property  should  not  be  inter- 
fered with.  The  forbearance  of  a  conqueror  from  con- 
fiscating the  entire  property  of  a  conquered  people  is 
usually  founded  in  good  policy,  as  well  as  in  humanity. 
The  object  of  foreign  conquest  is  to  acquire  a  perma- 
nent addition  to  the  power  and  territory  of  the  con- 
queror. This  object  would  be  defeated  by  stripping 
his  subjects  of  every  thing.  The  case  is  very  differ- 
ent where  confiscation  will  only  break  up  a  nest  of 
traitors,  and  drive  them  away  from  a  country  they  have 
betrayed. 

Suppose  that  certain  Englishmen  owned  large  tracts 

*  United  States  v.  Juan  Richmond,  7  Peters,  51. 


WAR   POWERS    OF   CONGRESS.  63 

of  real  estate  in  either  of  the  United  States  or  territo- 
ries thereof,  and  war  should  break  out ;  would  any  one 
doubt  the  right  of  Congress  to  pass  a  law  confiscating 
such  estate  ? 

The  laws  of  nations  allow  either  belligerent  to  seize 
and  appropriate  whatever  property  of  the  enemy  it  can 
gain  possession  of;  and,  of  all  descriptions  of  property 
which  government  could  safely  permit  to  be  owned  or 
occupied  by  an  alien  enemy,  real  estate  within  its  own 
dominion  would  be  the  last. 

No  distinction  can  be  properly  or  legally  made  be- 
tween the  different  kinds  of  enemy  property,  whether 
real,  personal,  or  mixed,  so  far  as  regards  their  liability 
to  confiscation  by  the  war  power.  Lands,  money, 
slaves,  debts,  may  and  have  been  subject  to  this  lia- 
bility. The  methods  of  appropriating  and*holding 
them  are  different  —  the  result  is  the  same.  And, 
considering  the  foundation  of  the  right,  the  object  for 
which  it  is  to  be  exercised,  and  the  effects  resulting 
from  it,"  there  is  nothing  in  law,  or  in  reason,  which 
would  indicate  why  one  can  and  the  other  cannot  be 
taken  away  from  the  enemy.  oit 

In  Broivn  v.  United  States,  8  Cranch,  p.  123,  the  Supreme 
Court  of  the  United  States  say,  —  r "  cf«j 

"  Respecting  the  power  of  government,  no  doubt  is  entertained. 
'That  war  gives  to  the  sovereign  the  full  right  to  take  the  persons  and 
confiscate  the  property  of  the  enemy,  wherever  found,  is  conceded. 
The  mitigations  of  this  rule,  which  the  humane  and  wise  policy  of 
modern  times  has  introduced  into  practice,  will  more  or  less  affect  the 
exercise  of  this  right,  but  cannot  impair  the  right  itself — that  remains 
undiminished ;  and  when  the  sovereign  authority  shall  choose  to  bring 
it  into  operation,  the  judicial  department  must  give  effect  to  its  will." 

"  It  may  be  considered,"  they  say,  "  as  the  opinion  of  all  who  have 
written  on  the  jus  belli,  that  war  gives  the  right  to  confiscate,"  &c. 


64  CONSTITUTION    OF   THE   UNITED    STATES. 

Chancellor  Kent  says,  — 

"  When  war  is  duly  declared,  it  is  not  merely  a  war  between  tnis 
and  the  adverse  government  in  their  political  characters.  Every 
man  is,  in  judgment  of  law,  a  party  to  the  acts  of  his  own  govern- 
ment, and  a  war  between  the  government  of  two  nations  is  a  war 
between  all  the  individuals  of  the  one  and  all  the  individuals  of  which 
the  other  nation  is  composed.  Government  is  the  representative  of  the 
will  of  the  people,  and  acts  for  the  whole  society.  This  is  the  theory 
of  all  governments,  and  the  best  writers  on  the  law  of  nations  concur 
in  the  doctrine,  that  when  the  sovereign  of  a  state  declares  war 
against  another  sovereign,  it  implies  that  the  whole  nation  declares 
war,  and  that  all  the  subjects  of  the  one  are  enemies  to  all  the  subjects 
of  the  other." 

"  Very  important  consequences  concerning  the  obligations  of  sub- 
jects are  deducible"  from  this  principle.  When  hostilities  have  com- 
menced, the  first  objects  that  present  themselves  for  detention  and 
capture  are  the  persons  and  property  of  the  enemy  found  within  the 
territory  on  the  breaking  out  of  war.  According  to  strict  authority,  a 
state  has  fc  right  to  deal  as  an  enemy  with  persons  and  property  so 
found  within  its  power,  and  to  confiscate  the-  property  and  detain  the 
persons  as  prisoners  of  war."  * 

We  thus  see,  that  by  the  law  of  nations,  by  the  prac- 
tice of  our  own  States,  by  the  decisions  of  courts,  by 
the  highest  authority  of  legal  writers,  and  by  the  deduc- 
tions of  reason,  there  can  be  no  question  of  the  consti- 
tutional right  of  confiscation  of  enemy  real  estate  of 
which  we  may  gain  possession.  And  the  legal  pre- 
sumption that  real  estate  situated  in  rebellious  districts 
is  enemy  property,  would  seem  to  be  as  well  founded 
as  it  is  in  case  of  personal  property  .f 

It  is  for  the  government  to  decide  how  it  shall 
use  its  belligerent  right  of  confiscation.  The  num- 
ber of  slaveholders  in  the  rebellious  States,  who 

*  1  Kent's  Com.,  p.  55.     See  also  Grotius,  B.  III.  ch.  3,  sect  9 ;  ch.  4, 
sect.  8.    Burlamaqui,  Part  IV.  ch.  4,  sect.  20.    Vattel,  B.  III.  ch.  5,  sect.  70. 
t  See  p  age  57. 


WAR   POWERS    OF    CONGRESS.  65 

are  the  principal  land  owners  in  that  region,  and 
who  are  the  chief  authors  and  supporters  of  this  rebel- 
lion, constitute,  all  told,  less  than  one  in  one  hundred 
and  tiventy  eight  of  the  people  of  the  United  States, 
and  less  than  one  fiftieth  part  of  the  inhabitants  of  their 
own  districts,  being  far  less  in  proportion  to  the 
whole  population  of  the  country  than  the  old  tones 
in  the  time  of  the  revolution  were  to  the  colonists.* 

*  In  confirmation  of  these  views  of  the  War  Powers  of  Congress,  see  the 
chapter  on  the  War  Powers  of  the  President,  and  NOTISS  thereon. 

9 


66  CONSTITUTION    OF   THE   UNITED    STATES. 


CHAPTER    III. 

.  : 

WAK  POWER  OF  THE    PRESIDENT  TO  EMANCIPATE   SLAVES. 

THE  power  of  the  President,  as  commander-in-chief 
of  the  army  and  navy  of  the  United  States,  when  in 
actual  service,  to  emancipate  the  slaves  of  any  belli- 
gerent section  of  the  country,  if  such  a  measure  be- 
comes necessary  to  save  the  government  from  destruc- 
tion, is  not,  it  is  presumed,  denied  by  any  respectable 
authority.* 

WHY   THE  POWER  EXISTS. 

The  liberation  of  slaves  is  looked  upon  as  a  means  of 
embarrassing  or  weakening  the  enemy,  or  of  strength- 
ening the  military  power  of  our  army.  If  slaves  be 
treated  as  contraband  of  war,  on  the  ground  that 
they  may  be  used  by  their  masters  to  aid  in  prose- 
cuting war,  as  employees  upon  military  works,  or  as 
laborers  furnishing  by  their  industry  the  means  of  car- 
rying on  hostilities ;  or  if  they  be  treated  as,  in  law, 
belligerents,  following  the  legal  condition  of  their 
owners ;  or  if  they  be  deemed  loyal  subjects  having  a 
just  claim  upon  the  government  to  be  released  from 
their  obligations  to  give  aid  and  service  to  disloyal  and 
belligerent  masters,  in  order  that  they  may  be  free  to 
perform  their  higher  duty  of  allegiance  and  loyalty  to 
the  United  States ;  or  if  they  be  regarded  as  subjects 

*  It  has  been  shown  in  a  previous  chapter  that  the  government  has  a 
right  to  treat  rebels  either  as  belligerents  or  as  subjects,  and  to  subject 
them  to  the  severities  of  international  belligerent  law. 


WAR   POWER    OF    THE    PRESIDENT.  07 

of  the  United  States,  liable  to  do  military  duty  ;  or  if 
they  be  made  citizens  of  the  United  States,  and  soldiers ; 
or  if  the  authority  of  the  masters  over  their  slaves  is 
the  means  of  aiding  and  comforting  the  enemy,  or  of 
throwing  impediments  in  the  way  of  the  government, 
or  depriving  it  of  such  aid  and  assistance  in  successful 
prosecution  of  the  war,  as  slaves  would  and  could 
afford,  if  released  from  the  control  of  the  enemy,  —  or 
if  releasing  the  slaves  would  embarrass  the  enemy,  and 
make  it  more  difficult  for  them  to  collect  and  maintain 
large  armies  j  in  either  of  these  cases,  the  taking  away 
of  these  slaves  from  the  "  aid  and  service "  of  the 
enemy,  and  putting  them  to  the  aid  and  service  of  the 
United  States,  is  justifiable  as  an.  act  of  war.  The 
ordinary  way  of  depriving  the  enemy  of  slaves  is  by 
declaring  emancipation. 

THE  PRESIDENT   IS  THE  SOLE  JUDGE. 

"It  belongs  exclusively  to  the  President  to  judge 
when  the  exigency  arises  in  which  he  has  authority, 
under  the  constitution,  to  call  forth  the  militia,  and  his 
decision  is  conclusive  on  all  other  persons."  * 

The  constitution  confers  on  the  Executive,  when  in 
actual  war,  full  belligerent  powers.  The  emancipation 
of  enemy's  slaves  is  a  belligerent  right.  It  belongs 
exclusively  to  the  President,  as  commander-in-chief,  to 
judge  whether  he  shall  exercise  his  belligerent  right  to 
emancipate  slaves  in  those  parts  of  the  country  which 
are  in  rebellion.  If  exercised  in  fact,  and  while  the 
war  lasts,  his  act  of  emancipation  is  conclusive  arid 


*  Such  is  the  language  of  Chief  Justice  Taney,  in  delivering  the  opinion 
of  the  Supreme  Court,  in  Martinv.  Mott,  12  Wheaton,  19. 


68  CONSTITUTION    OF    THE   UNITED    STATES. 

binding  forever  on  all  the  departments  of  government^ 
and  on  all  persons  whatsoever. 


POWERS    OF  THE    PRESIDENT    NOT  INCONSISTENT  "WITH  POWERS    OF 
CONGRESS    TO  EMANCIPATE  SLAVES. 

The  right  of  the  Executive  to  strike  this  blow  against 
his  enemy  does  not  deprive  Congress  of  the  concur- 
rent right  or  duty  to  emancipate  enemy's  slaves,  if  in 
their  judgment  a  civil  act  for  that  purpose  is  required  by 
public  welfare  and  common  defence,  for  the  purpose  of 
aiding  and  giving  effect  to  such  war  measures  as  the 
commander-in-chief  may  adopt. 

The  military  authority  of  the  President  is  not  incom- 
patible with  the  peace  or  war  powers  of  Congress ;  but 
both  coexist,  and  may  be  exercised  upon  the  same  sub- 
ject. Thus,  when  the  army  captures  a  regiment  of 
soldiers,  the  legislature  may  pass  laws  relating  to  the 
captives.  So  may  Congress  destroy  slavery  by  abolish- 
ing the  laws  which  sustain  it,  while  the  commander  of 
the  army  may  destroy  it  by  capture  of  slaves,  by 
proclamation,  or  by  other  means. 

IS  LIBERATION  OF  ENEMY'S  SLAVES  A  BELLIGERENT  RIGHT  ? 

This  is  the  chief  inquiry  on  this  branch  of  the  sub- 
ject. To  answer  it  we  must  appeal  to  the  law  of 
nations,  and  learn  whether  there  is  any  commanding 
authority  which  forbids  the  use  of  an  engine  so  power- 
ful and  so  formidable  —  an  engine  which  may  grind  to 
powder  the  disloyalty  of  rebels  in  arms,  while  it  clears 
the  avenue  to  freedom  for  four  millions  of  Americans. 
It  is  only  the  law  of  nations  that  can  decide  this  ques- 
tion, because  the  constitution,  having  given  authority 
to  government  to  make  war,  has  placed  no  limit  what- 


WAR   POWER    OP   THE    PRESIDENT.  69 

ever  to  the  war  powers.  There  is,  therefore,  no  legal 
control  over  the  war  powers  except  the  law  of  nations, 
and  no  moral  control  except  the  usage  of  modern  civil- 
ized belligerents. 

THE    LAW   OF    NATIONS    SANCTIONS    EMANCIPATION    OF   ENEMY'S 
SLAVES. 

It  is  in  accordance  with  the  law  of  nations  and  with 
the  practice  of  civilized  belligerents  in  modern  times, 
to  liberate  enemy's  slaves  in  time  of  war  by  military 
power.  In  the  revolutionary  war,  England  exercised 
that  unquestioned  right  by  not  less  than  three  of  her 
military  commanders  —  Sir  Henry  Clinton,  Lord  Dun- 
more,  and  Lord  Cornwallis.  That  General  Washington 
recognized  and  feared  Lord  Dunmore's  appeal  to  the 
slaves,  is  shown  by  his  letter  on  that  subject. 

"  His  strength,"  said  Washington,  "  will  increase  as  a  snow-ball  by 
rolling  faster  and  faster,  if  some  expedient  cannot  be  hit  upon  to  con- 
vince the  slaves  and  servants  of  the  impotency  of  his  designs." 

The  right  to  call  the  slaves  of  colonists  to  the  aid  of 
the  British  arms  was  expressly  admitted  by  Jefferson, 
in  his  letter  to  Dr.  Gordon.  In  writing  of  the  injury 
done  to  his  estates  by  Cornwallis,  he  uses  the  following 
language : — 

"  He  destroyed  all  my  growing  crops  and  tobacco ;  he  burned  all 
my  barns,  containing  the  same  articles  of  last  year.  Having  first  taken 
what  corn  he  wanted,  he  used,  as  was  to  be  expected,  all  my  stock  of 
cattle,  sheep,  and  hogs,  for  the  sustenance  of  his  army,  and  carried  off 
all  the  horses  capable  of  service.  He  carried  off  also  about  thirty 
slaves.  Had  this  been  to  give  them  freedom,  he  would  have  done  right. 
.  .  .  From  an  estimate  made  at  the  time  on  the  best  information  I 
could  collect,  I  suppose  the  State*  of  Virginia  lost  under  Lord  Corn- 
wallis's  hands,  that  year,  about  thirty  thousand  slaves." 
. 


70  CONSTITUTION    OF   THE   UNITED    STATES. 

Great  Britain,  for  the  second  time,  used  the  same 
right  against  us  in  the  war  of  1812.  Her  naval  and 
military  commanders  invited  the  slaves,  by  public  proc- 
lamations, to  repair  to  their  standard,  promising  them 
freedom.*  The  slaves  who  went  over  to  them  were  lib- 
erated, and  were  carried  away  contrary  to  the  express 
terms  of  the  treaty  of  Ghent,  in  which  it  was  stipulated 
that  they  should  not  be  carried  away.  England  pre- 
ferred to  become  liable  for  a  breach  of  the  treaty  rather 
than  to  break  faith  with  the  fugitives.  Indemnity  for 
this  violation  of  contract  was  demanded  and  refused. 
The  question  was  referred  to  the  decision  of  the  Em- 
peror of  Russia,  as  arbitrator,  who  decided  that  indem- 
nity should  be  paid  by  Great  Britain,  not  because  she 
had  violated  the  law  of  nations  in  emancipating  slaves, 
but  because  she  had  broken  the  terms  of  the  treaty. 

In  the  arguments  submitted  to  the  referee,  the  Brit- 
ish government  broadly  asserted  the  belligerent  right 
of  liberating  enemy's  slaves,  even  if  they  were  treated 
as  private  property.  Mr.  Middleton  was  instructed  by 
Mr.  J.  Q.  Adams,  then,  in  1820,  Secretary  of  State,  to 
deny  that  right,  and  to  present  reasons  for  that  denial. 
But  that  in  this  instance  he  acted  in  obedience  to  "the 
instructions  of  the  President  and  cabinet,  and  against 
his  own  opinions  on  the  law  of  nations,  is  shown  by  his 
subsequent  statement  in  Congress  to  that  effect.-}*  The 
question  of  international  law  was  left  undecided  by  the 
Emperor ;  but  the  assertion  of  England,  that  it  is  a 

*  For  Admiral  Cochrane's  Proclamation,  instigating  the  slaves  to  desert 
their  masters,  see  Xiles's  Register,  vol.  vi.  p.  242. 

t  "  It  was  utterly  against  my  judgment  and  wishes  ;  but  I  was  obliged 
to  submit,  and  prepared  the  requisite  despatches."  See  Congressional 
Globe,  XXVII.  Cong.,  2d  sess.,  1841-2 ;  vol.  ii.  p.  424. 


WAR   POWER    OF   THE   PRESIDENT.  71 

legitimate  exercise  of  belligerent  rights  to  liberate 
enemy's  slaves,  —  a  right  which  had  previously  been 
enforced  by  her  against  the  colonies,  and  by  France 
against  her,  and  again  by  her  against  the  United  States, 
—  was  entitled  to  great  weight,  as  a  reiterated  and 
authentic  reaffirmance  of  the  well-settled  doctrine. 

In  speeches  before  the  House  of  Representatives  on 
the  25th  of  May,  1836,  on  the  7th  of  June,  1841,  and 
on  the  14th  and  15th  of  April,  1842,  Mr.  Adams  ex- 
plained and  asserted  in  the  amplest  terms  the  powers 
of  Congress,  and  the  authority  of  the  President,  to  free 
enemy's  slaves,  as  a  legitimate  act  of  war.*  Thus  lead- 
ing statesmen  of  England  and  America  have  concurred 
in  the  opinion  that  emancipation  is  a  belligerent  right. 

St.  Domingo,  in  1793?  contained  more  than  five  hun- 
dred thousand  negroes,  with  many  mulattoes  and 
whites,  and  was  held  as  a  province  of  France.  Intes- 
tine commotions  had  raged  for  nearly  three  years  be- 
tween the  whites  and  mulattoes,  in  which  the  negroes 
had  remained  neutral.  The  Spaniards  having  ef- 
fected an  alliance  with  the  slaves  who  had  revolted 
in  1791,  invaded  the  island  and  occupied  several  im- 
portant military  points.  England,  also,  was  making  a 
treaty  with  the  planters  to  invade  the  country ;  and 
thus  the  possession  seemed  about  to  be  wrested  from 
France  by  the  efforts  of  one  or  the  other  of  its  two 
bitterest  foes.  One  thousand  French  soldiers,  a  few 
mulattoes  and  loyal  slaveholders,  were  all  the  force 
which  could  be  mustered  in  favor  of  the  government, 
for  the  protection  of  this  precious  island,  situated  so 
far  away  from  France. 

*  For  extracts  from  these  speeches,  see  postca. 


72  CONSTITUTION    OF   THE    UNITED    STATES. 

Sonthonax  and  Polverel,  the  French  commissioners, 
on  the  29th  of  August,  1793,  issued  a  proclamation, 
under  martial  law,  wherein  they  declared  all  the  slaves 
free,  and  thereby  brought  them  over  en  masse  to  the 
support  of  the  government.  The  English  troops  landed 
three  weeks  afterwards,  and  were  repulsed  principally 
by  the  slave  army. 

On  the  4th  of  February,  1794,  the  National  Conven- 
tion of  France  confirmed  the  act  of  the  commissioners, 
and  also  abolished  slavery  in  the  other  French  colonies. 

In  June,  1794,  Toussaint  L'Ouverture,  a  colored  man, 
admitted  by  military  critics  to  be  one  of  the  great 
generals  of  modern  times,  having  until  then  fought 
in  favor  of  Spain,  brought  his  army  of  five  thousand 
colored  troops  to  the  aid  of  France,  forced  entrance 
into  the  chief  city  of  the  island  in  which  the  French 
troops  were  beleaguered,  relieved  his  allies,  and  offered 
himself  and  his  army  to  the  service  of  that  govern- 
ment, which  had  guaranteed  to  them  their  freedom. 
From  that  hour  the  fortunes  of  the  war  changed. 
The  English  were  expelled  from  the  island  in  1798 ; 
the  Spaniards  also  gave  it  up;  and  in  1801  Toussaint 
proclaimed  the  republic  in  the  Spanish  portion  of  the 
island  which  had  been  ceded  to  France  by  the  treaty 
of  1795 ;  thus  extending  the  practical  operation  of 
the  decree  of  emancipation  over  the  whole  island,  and 
liberating  one  hundred  thousand  more  persons  who 
had  been  slaves  of  Spaniards. 

The  island  was  put  under  martial  law ;  the  planters 
were  recalled  by  Toussaint,  and  permitted  to  hire  their 
former  slaves ;  and  his  government  was  enforced  by 
military  power;  and  from  that  time  until  1802,  the 
progress  of  the  people  in  commerce,  industry,  and  gen- 


WAR   POWER    OF   THE   PRESIDENT.  73 

eral  prosperity  was  rapid  and  satisfactory.  But  in 
1802  the  influence  of  emigrant  planters,  and  of  the 
Empress  Josephine,  a  Creole  of  Martinique,  induced 
Napoleon  to  send  a  large  army  to  the  island,  to  rees- 
tablish the  slave  trade  and  slavery  in  all  the  other  isl- 
ands except  St.  Domingo,  with  the  design  of  restoring 
slavery  there  after  he  should  have  conquered  it.  But 
war,  sickness,  and  disasters  broke  up  his  forces,  and 
the  treacherous  Frenchmen  met  the  due  reward  of 
their  perfidy,  and  were,  in  1804,  totally  driven  from 
the  island.  The  independence  of  St.-  Domingo  was 
actually  established  in  1804.  The  independence  of 
Hayti  was  recognized  by  the  United  States  in  1862. 

From  this  brief  outline  it  is  shown,  that  France 
recognizes  the  right,  under  martial  law,  to  emancipate 
the  slaves  of  an  enemy  —  having  asserted  and  exer- 
cised that  right  in  the  case  of  St.  Domingo.*  And  the 
slaves  thus  liberated  have  retained  their  liberty,  and 
compose,  at  this  day,  the  principal  population  of  a  gov- 
ernment who  have  entered  into  diplomatic  relations 
with  the  United  States. 

In  Colombia  slavery  was  abolished,  first  by  the 
Spanish  General  Morillo,  and  secondly  by  the  American 
General  Bolivar.  "  It  was  abolished,"  says  John  Quincy 
Adams,  "  by  virtue  of  a  military  command  given  at  the 
head  of  the  army,  and  its  abolition  continues  to  this 
day.  It  was  abolished  by  the  laws  of  war,  and  not  by 
the  municipal  enactments;  the  power  was  exercised 

*  For  the  decree  of  the  French  Assembly,  see  Choixde  Rapports —  Opin- 
ions et  Discours  prononces  a  la  Tribune  Nationale  depuis  1789.   Paris,  1821, 
t.  xiv.  p.  425.  —  See  Abolition  d'Esdavage,  (Colonies  Francaises,)par  Augus^ 
tin  Cochin.     Paris,  1861.     Vol.  i.  pp.  14,  15,  &c. 
10 


74  CONSTITUTION    OF   THE   UNITED    STATES. 

by  military  commanders,  under  instructions,  of  course, 
from  their  respective  governments." 

AUTHORITY  AND  USAGE   CONFIRM  THE  RIGHT. 

It  may  happen  that  when  belligerents  on  both  sides 
hold  slaves,  neither  will  deem  it  expedient,  through  fear 
of  retaliation,  to  liberate  the  slaves  of  his  adversary ; 
but  considerations  of  policy  do  not  affect  questions  of 
international  rights;  and  forbearance  to  exercise  a 
power  does  not  prove  its  non-existence.  While  no  au- 
thority among  eminent  ancient  writers  on  the  subject 
has  been  found  \o  deny  the  right  of  emancipation,  the 
fact  that  England,  France,  Spain,  and  the  South  Amer- 
ican republics  have  actually  freed  the  slaves  of  their 
enemies,  conclusively  shows  that  the  law  and  practice 
of  modern  civilized  nations  sanction  that  right. 

HOW  FAR  THE  GOVERNMENT  OF  THE  UNITED  STATES  UNDER  FORMER 
ADMINISTRATIONS  HAVE  SANCTIONED  THE  BELLIGERENT  RIGHT 
OF  EMANCIPATING  SLAVES  OF  LOYAL  AND  OF  DISLOYAL  CITIZENS. 

The  government  of  the  United  States,  in  1814,  recog- 
nized the  right  of  their  military  officers,  in  time  of  war, 
to  appropriate  to  public  use  the  slaves  of  loyal  citizens 
without  compensation  therefor;  also,  in  1836,  the  right 
to  reward  slaves  who  have  performed  public  service, 
by  giving  freedom  to  them  and  to  their  families ;  also, 
in  1838,  the  principle  that  slaves  of  loyal  citizens,  cap- 
tured in  war,  should  be  emancipated,  and  not  returned 
to  their  masters;  and  that  slaves  escaping  to  the  army 
of  the  United  States  should  be  treated  as  prisoners  of 
war,  and  not  as  property  of  their  masters.  These  prop- 
ositions are  supported  by  the  cases  of  General  Jackson, 
General  Jessup,  General  Taylor,  and  General  Gaines. 


WAR   POWER    OF    THE   PRESIDENT.  75 

"In  December,  1814,"  says  a  distinguished  writer  and  speaker, 
"  General  Jackson  impressed  a  large  number  of  slaves  at  and  near  New 
Orleans,  and  set  them  at  work  erecting  defences,  behind  which  his  troops 
won  such  glory  on  the  8th  of  January,  1815.  The  masters  remon- 
strated. Jackson  disregarded  their  remonstrances,  and  kept  the  slaves 
at  work  until  many  of  them  were  killed  by  the  enemy's  shot ;  yet  his 
action  Was  approved  by  Mr.  Madison,  the  cabinet,  and  by  the  Con- 
gress, which  has  ever  refused  to  pay  the  masters  for  their  losses.  In 
this  case,  the  masters  were  professedly  friends  to  the  government;  and 
yet  our  Presidents,  and  cabinets,  and  generals  have  not  hesitated  to 
emancipate  their  slaves,  whenever  in  time  of  war  it  was  supposed  to 
be  for  the  interest  of  the  country  to  do  so.  This  was  done  in  the 
exercise  of  the  war  power  to  which  Mr.  Adams  referred,  and  for 
which  he  had  the  most  abundant  authority." 

"In  1836  General  Jessup  engaged  several  fugitive  slaves  to  act 
as  guides  and  spies,  agreeing,  if  they  would  serve  the  government 
faithfully,  to  secure  to  them  the  freedom  of  themselves  and  families. 
They  fulfilled  their  engagement  in  good  faith.  The  general  gave  them 
their  freedom,  and  sent  them  to  the  west.  Mr.  Van  Buren's  admin- 
istration sanctioned  the  contract,  and  Mr.  Tyler's  administration  ap- 
proved the  proceeding  of  the  general  in  setting  the  slaves  and  their 
families  free." 

The  writer  above  quoted  says, — 

"  Louis,  the  slave  of  a  man  named  Pacheco,  betrayed  Major  Dade's 
battalion,  in  1836,  and  when  he  had  witnessed  their  massacre,  he 
joined  the  enemy.  Two  years  subsequently  he  was  captured.  Pa- 
checo claimed  him ;  General  Jessup  said  if  he  had  time,  he  would  try 
him  before  a  court  martial  and  hang  him,  but  would  not  deliver  him 
to  any  man.  He,  however,  sent  him  west,  and  the  fugitive  slave  be- 
came a  free  men.  General  Jessup  reported  his  action  to  the  War 
Department,  and  Mr.  Van  Buren,  then  President,  with  his  cabinet, 
approved  it.  Pacheco  then  appealed  to  Congress,  asking  that  body 
to  pay  him  for  the  loss  of  his  slave.  The  House  ef  Representatives 
voted  against  the  bill,  which  was  rejected.  All  concurred  in  the  opin- 
ion that  General  Jessup  did  right  in  emancipating  the  slave,  instead 
of  returning  him  to  his  master. 

"In  1838  General  Taylor  captured  a  number  of  negroes  said  to 
be  fugitive  slaves.  Citizens  of  Florida,  learning  what  had  been  done, 
immediately  gathered  around  his  camp,  intending  to  secure  the  slaves 


76  CONSTITUTION    OF   THE   UNITED    STATES. 

who  had  escaped  from  them.  General  Taylor  told  them  that  he  had 
no  prisoners  but '  prisoners  of  war.'  The  claimants  then  desired  to 
look  at  them,  in  order  to  determine  whether  he  was  holding  their 
slaves  as  prisoners.  The  veteran  warrior  replied  that  no  man  should 
examine  his  prisoners  for  such  a  purpose  ;  and  he  ordered  them  to 
depart.  This  action,  being  reported  to  the  War  Department,  was  ap- 
proved by  the  Executive.  The  slaves,  however,  were  sent  west,  and 
set  free. 

"In  1838  many  fugitive  slaves  and  Indians,  captured  in  Florida, 
had  been  ordered  to  be  sent  west  of  the  Mississippi.  Some  of  them 
were  claimed  at  New  Orleans  by  their  owners,  under  legal  process. 
General  Gaines,  commander  of  the  military  district,  refused  to  deliver 
them  up  to  the  sheriff,  and  appeared  in  court  and  stated  his  own 
defence. 

"  His  grounds  of  defence  were,  '  that  these  men,  women,  and  chil- 
dren were  captured  in  war,  and  held  as  prisoners  of  war  ;  that  as 
commander  of  that  military  department  he  held  them  subject  only  to 
the  order  of  the  national  Executive  ;  that  he  could  recognize  no 
other  power  in  time  of  war,  or  by  the  laws  of  war,  as  authorized  to 
take  prisoners  from  his  possession.  He  asserted  that  in  time  of  war 
all  slaves  were  belligerents  as  much  as  their  masters.  The  slave  men 
cultivate  the  earth,  and  supply  provisions.  The  women  cook  the  food 
and  nurse  the  sick,  and  contribute  to  the  maintenance  of  the  war,  often 
more  than  the  same  number  of  males.  The  slave  children  equally 
contribute  whatever  they  are  able  to  the  support  of  the  war.  The 
military  officer,  he  said,  can  enter  into  no  judicial  examination  of  the 
claim  of  one  man  to  the  bone  and  muscle  of  another,  as  property  ;  nor 
could  he,  as  a  military  officer,  know  what  the  laws  of  Florida  were 
while  engaged  in  maintaining  the  federal  government  by  force  of 
arms.  In  such  case  he  could  only  be  guided  by  the  laws  of  war,  and 
whatever  may  be  the  laws  of  any  State,  they  must  yield  to  the  safety 
of  the  federal  government.  He  sent  the  slaves  west,  and  they  be- 
came free.' "  * 

On  the  26th  of  May,  1836,  in  a  debate  in  the  House  of 
Representatives  upon  the  joint  resolution  for  distributing 
rations  to  the  distressed  fugitives  from  Indian  hostilities 

*  This  defence  of  General  Gaines  may  be  found  in  House  Document 
No.  225  of  the  2d  session  of  the  25th  Congress. 


WAR   POWER    OP   THE   PRESIDENT.  77 

in  the   states   of  Alabama  and  Georgia,  JOHN  QUINCY 
ADAMS  expressed  the  following  opinions :  — 

"Sir,  in  the  authority  given  to  Congress  by  the  constitution  of 
the  United  States  to  declare  war,  all  the  powers  incidental  to  war 
are,  by  necessary  implication,  conferred  upon  the  government  of  the 
United  States.  Now,  the  powers  incidental  to  war  are  derived,  not 
from  their  internal  municipal  source,  but  from  the  laws  and  usages  of 
nations. 

"  There  are,  then,  Mr.  Chairman,  in  the  authority  of  Congress  and 
of  the  Executive,  two  classes  of  powers,  altogether  different  in  their 
nature,  and  often  incompatible  with  each  other  —  the  war  power  and 
the  peace  power.  The  peace  power  is  limited  by  regulations  and  re- 
stricted by  provisions  prescribed  within  the  Constitution  itself.  The 
war  power  is  limited  only  by  the  laws  and  usages  of  nations.  This 
power  is  tremendous ;  it  is  strictly  constitutional,  but  it  breaks  down 
every  barrier  so  anxiously  erected  for  the  protection  of  liberty,  of  prop- 
erty, and  of  life.  This,  sir,  is  the  power  which  authorizes  you  to  pass 
the  resolution  now  before  you,  and,  in  my  opinion,  no  other." 

After  an  interruption,  Mr.  Adams  went  on  to  say,  — 

"There  are,  indeed,  powers  of  peace  conferred  upon  Congress 
which  also  come  within  the  scope  and  jurisdiction  of  the  laws  of 
nations,  such  as  bhe  negotiation  of  treaties  of  amity  and  commerce, 
the  interchange  of  public  ministers  and  consuls,  and  all  the  personal 
and  social  intercourse  between  the  individual  inhabitants  of  the 
United  States  and  foreign  nations,  and  the  Indian  tribes,  which  require 
the  interposition  of  any  law.  But  the  powers  of  war  are  all  regulated 
by  the  laws  of  nations,  and  are  subject  to  no  other  limitation.  ...  It 
was  upon  this  principle  that  I  voted  against  the  resolution  reported  by 
the  slavery  committee,  '  that  Congress  possess  no  constitutional  author- 
ity to  interfere,  in  any  way,  with  the  institution  of  slavery  in  any  of 
the  States  of  this  confederacy/  to  which  resolution  most  of  those  with 
whom  I  usually  concur,  and  even  my  own  colleagues  in  this  house, 
gave  their  assent.  I  do  not  admit  that  there  is,  even  among  the  peace 
powers  of  Congress,  no  such  authority ;  but  in  war,  there  are  manyways 
by  which  Congress  not  only  have  the  authority,  but  ARE  BOUND  TO 

INTERFERE    WITH    THE     INSTITUTION    OP    SLAVERY   IN    THE    STATES. 

The  existing  law  prohibiting  the  importation  of  slaves  into  the  United 
States  from  foreign  countries  is  itself  an  interference  with  the  insti' 


78  CONSTITUTION   OF   THE   UNITED    STATES. 

tution  of  slavery  in  the  States.  It  was  so  considered  by  the  founders 
of  the  constitution  of  the  United  States,  in  which  it  was  stipulated 
that  Congress  should  not  interfere,  in  that  way,  with  the  institution, 
prior  to  the  year  1808. 

"  During  the  late  war  with  Great  Britain,  the  military  and  naval 
commanders  of  that  nation  issued  proclamations  inviting  the  slaves  to 
repair  to  their  standard,  with  promises  of  freedom  and  of  settlement  in 
some  of  the  British  colonial  establishments.  This  surely  was  an  inter- 
ference with  the  institution  of  slavery  in  the  States.  By  the  treaty 
of  peace,  Great  Britian  stipulated  to  evacuate  all  the  forts  and  places 
in  the  United  States,  without  carrying  away  any  slaves.  If  the  gov- 
ernment of  the  United  States  had  no  power  to  interfere,  in  any  way, 
with  the  institution  of  slavery  in  the  States,  they  would  not  have  had 
the  authority  to  require  this  stipulation.  It  is  well  known  that  this 
engagement  was  not  fulfilled  by  the  British  naval  and  military  com- 
manders ;  that,  on  the  contrary,  they  did  carry  away  all  the  slaves 
whom  they  had  induced  to  join  them,  and  that  the  British  government 
inflexibly  refused  to  restore  any  of  them  to  their  masters  ;  that  a  claim 
of  indemnity  was  consequently  instituted  in  behalf  of  the  .owners  of 
the  slaves,  and  was  successfully  maintained.  All  that  series  of  trans- 
actions was  an  interference  by  Congress  with  the  institution  of  slavery 
in  the  States  in  one  way  —  in  the  way  of  protection  and  support.  It 
was  by  the  institution  of  slavery  alone  that  the  restitution  of  slaves, 
enticed  by  proclamations  into  the  British  service,  could  be  claimed  as 
property.  But  for  the  institution  of  slavery,  the  British  commanders 
could  neither  have  allured  them  to  their  standard,  nor  restored  them 
otherwise  than  as  liberated  prisoners  of  war.  But  for  the  institution 
of  slavery,  there  could  have  been  no  stipulation  that  they  should  not 
be  carried  away  as  property,  nor  any  claim  of  indemnity  for  the  viola- 
tion of  that  engagement." 


o   o 


Mr.  Adams  goes  on  to  state  how  the  war  power  may 
be  used :  — 

"  But  the  war  power  of  Congress  over  the  institution  of  slavery  in 
the  States  is  yet  far  more  extensive.  Suppose  the  case  of  a  servile 
war,  complicated,  as  to  some  extent  it  is  even  now,  with  an  Indian 
war;  suppose  Congress  were  called  to  raise  armies,  to  supply  money 
from  the  whole  Union  to  suppress  a  servile  insurrection  :  would  they 
have  no  authority  to  interfere  with  the  institution  of  slavery  ?  The 
issue  of  a  servile  war  may  be  disastrous ;  it  may  become  necessary  for  the 


WAR   POWER   OF   THE   PRESIDENT.  79 

master  of  the  slave  to  recognize  his  emancipation  by  a  treaty  of  peace : 
can  it  for  an  instant  be  pretended  that  Congress,  in  such  a  contingency, 
would  have  no  authority  to  interfere  with  the  institution  of  slavery,  in 
any  way,  in  the  States  ?  Why,  it  would  be  equivalent  to  saying  that 
Congress  have  no  constitutional  authority  to  make  peace.  I  suppose 
a  more  portentous  case,  certainly  within  the  bounds  of  possibility  —  I 
would  to  God  I  could  say,  not  within  the  bounds  of  probability  — : " 

"  Do  you  imagine,"  he  asks,  "  that  your  Congress  will  have  no  con- 
stitutional authority  to  interfere  with  the  institution  of  slavery,  in  any 
way,  in  the  States  of  this  confederacy?  Sir,  they  must  and  will  in- 
terfere with  it —  perhaps  to  sustain  it  by  war,  perhaps  to  abolish  it  by 
treaties  of  peace ;  and  they  will  not  only  possess  the  constitutional 
power  so  to  interfere,  but  they  will  be  bound  in  duty  to  do  it,  by  the 
express  provisions  of  the  constitution  itself.  From  the  instant  that 
your  slaveholding  States  become  the  theatre  of  a  war,  civil,  servile,  or 
foreign  war,  from  that  instant  the  war  powers  of  Congress  extend  to  in- 
terference with  the  institution  of  slavery,  in  every  way  by  which  it  can 
be  interfered  with,  from  a  claim  of  indemnity  for  slaves  taken  or 
destroyed,  to  the  cession  of  States  burdened  with  slavery  to  a  foreign 
power." 

Extracts  from  the  speech  of  John  Quincy  Adams, 
delivered  in  the  United  States  House  of  Representa- 
tives, April  14th  and  15th,  1842,  on  war  with  Great 
Britain  and  Mexico  :  — r 

"  What  I  say  is  involuntary,  because  the  subject  has  been  brought 
into  the  house  from  another  quarter,  as  the  gentleman  himself  admits. 
I  would  leave  that  institution  to  the  exclusive  consideration  and  man- 
agement of  the  States  more  peculiarly  interested  in  it,  just  as  long  as 
they  can  keep  within  their  own  bounds.  So  far,  I  admit  that  Con- 
gress has  no  power  to  meddle  with  it.  As  long  as  they  do  not  step 
out  of  their  own  bounds,  and  do  not  put  the  question  to  the  people 
"of  the  United  States,  whose  peace,  welfare,  and  happiness  are  all  at 
stake,  so  long  I  will  agree  to  leave  them  to  themselves.  But  wheri  a 
member  from  a  free  State  brings  forward  certain  resolutions,  for  which, 
instead  of  reasoning  to  disprove  his  positions,  you  vote  a  censure  upon 
him,  and  that  without  hearing,  it  is  quite  another  affair.  At  the  time 
this  was  done,  I  said  that,  as  far  as  I  could  understand  the  resolutions 
proposed  by  the  gentleman  from  Ohio,  (Mr.  Giddiugs,)  there  were 


80  CONSTITUTION    OF   THE   UNITED    STATES. 

some  of  them  for  which  I  was  ready  to  vote,  and  some  which  I  must 
vote  against ;  and  I  will  now  tell  this  house,  my  constituents,  and  the 
whole  of  mankind,  that  the  resolution  against  which  I  would  have 
voted  was  that  in  which  he  declares  that  what  are  called  the  slave 
States  have  the  exclusive  right  of  consultation  on  the  subject  of 
slavery.  For  that  resolution  I  never  would  vote,  because  I  believe 
that  it  is  not  just,  and  does  not  contain  constitutional  doctrine.  I 
believe  that,  so  long  as  the  slave  States  are  able  to  sustain  their  insti- 
tutions without  going  abroad  or  calling  upon  other  parts  of  the  Union  to 
aid  them  or  act  on  the  subject,  so  long  I  will  consent  never  to  interfere. 
I  have  said  this,  and  I  repeat  it ;  but  if  they  come  to  the  free  States, 
and  say  to  them,  You  must  help  us  to  keep  down  our  slaves,  you  must 
aid  us  in  an  insurrection  and  a  civil  war,  then  I  say  that  with  that  call 
comes  full  and  plenary  power  to  this  house  and  to  the  Senate  over  the 
whole  subject.  It  is  a  war  power.  I  say  it  is  a  war  power ;  and 
when  your  country  is  actually  in  war,  whether  it  be  a  war  of  invasion 
or  a  war  of  insurrection,  Congress  has  power  to  carry  on  the  war,  and 
must  carry  it  on,  according  to  the  laws  of  war ;  and  by  the  laws  of 
war,  an  invaded  country  has  all  its  laws  and  municipal  institutions 
swept  by  the  board,  and  martial  law  takes  the  place  of  them.  This 
power  in  Congress  has,  perhaps,  never  been  called  into  exercise  under 
the  present  constitution  of  the  United  States.  But  when  the  laws  of 
war  are  in  force,  what,  I  ask,  is  one  of  those  laws  ?  It  is  this  :  that 
when  a  country  is  invaded,  and  two  hostile  armies  are  set  in  martial 
array,  the  commanders  of  both  armies  have  power  to  emancipate  all  the 
slaves  in  the  invaded  territory.  Nor  is  this  a  mere  theoretic  state- 
ment. The  history  of  South  America  shows  that  the  doctrine  has 
been  carried  into  practical  execution  within  the  last  thirty  years. 
Slavery  was  abolished  in  Colombia,  first,  by  the  Spanish  General 
Morillo,  and,  secondly,  by  the  American  General  Bolivar.  It  was 
abolished  by  virtue  of  a  military  command  given  at  the  head  of  the 
army,  and  its  abolition  continues  to  be  law  to  this  day.  It  was  abolished 
by  the  laws  of  war,  and  not  by  the  municipal  enactments  ;  the  power 
was  exercised  by  military  commanders,  under  instructions,  of  course, 
from  their  respective  governments.  And  here  I  recur  again  to  the 
example  of  General  Jackson.  What  are  you  now  about  in  Congress  ? 
You  are  about  passing  a  grant  to  refund  to  General  Jackson  the 
amount  of  a  certain  fine  imposed  upon  him  by  a  judge,  under  the  laws 
of  the  State  of  Louisiana.  You  are  going  to  refund  him  the  money, 
with  interest ;  and  this  you  are  going  to  do  because  the  imposition  of 


WAR   POWER   OF   THE   PRESIDENT.  81 

the  fine  was  unjust.  And  why  was  it  unjust  ?  Because  General 
Jackson  was  acting  under  the  laws  of  war,  and  because  the  moment 
you  place  a  military  commander  in  a  district  which  is  the  theatre  of 
war,  the  laws  of  war  apply  to  that  district. 

*  *  ***** 

"  I  might  furnish  a  thousand  proofs  to  show  that  the  pretensions  of 
gentlemen  to  the  sanctity  of  their  municipal  institutions  under  a  state 
of  actual  invasion  and  of  actual  war,  whether  servile,  civil,  or  foreign, 
is  wholly  unfounded,  and  that  the  laws  of  war  do,  in  all  such  cases, 
take  the  precedence.  I  lay  this  down  as  the  law  of  nations.  I  say 
that  military  authority  takes,  for  the  time,  the  place  of  all  municipal 
institutions,  and  slavery  among  the  rest ;  and  that,  under  that  state  of 
things,  so  far  from  its  being  true  that  the  States  where  slavery  exists 
have  the  exclusive  management"  of  the  subject,  not  only  the  President 
of  the  United  States,  but  the  commander  of  the  army,  has  power  to 
order  the  universal  emancipation  of  the  slaves.  I  have  given  here 
more  in  detail  a  principle  which  I  have  asserted  on  this  floor  before 
now,  and  of  which  I  have  no  more  doubt  than  that  you,  sir,  occupy 
that  chair.  I  give  it  in  its  development,  in  order  that  any  gentleman 
from  any  part  of  the  Union  may,  if  he  thinks  proper,  deny  the  truth 
of  the  position,  and  may  maintain  his  denial ;  not  by  indignation,  not 
by  passion  and  fury,  but  by  sound  and  sober  reasoning  from  the  laws 
of  nations  and  the  laws  of  war.  And  if  my  position  can  be  answered 
and  refuted,  I  shall  receive  the  refutation  with  pleasure ;  I  shall  be 
glad  to  listen  to  reason,  aside,  as  I  say,  from  indignation  and  passion. 
And  if,  by  the  force  of  reasoning,  my  understanding  can  be  convinced, 
I  here  pledge  myself  to  recant  what  I  have  asserted. 

"  Let  my  position  be  answered ;  let  me  be  told,  let  my  constituents  be 
told,  let  the  people  of  my  State  be  told,  —  a  State  whose  soil  tolerates 
not  the  foot  of  a  slave,  —  that  they  are  bound  by  the  constitution  to  a 
long  and  toilsome  march,  under  burning  summer  suns  and  a  deadly 
southern  clime,  for  the  suppression  of  a  servile  war ;  that  they  are 
bound  to  leave  their  bodies  to  rot  upon  the  sands  of  Carolina,  to  leave 
their  wives  widows  and  their  children  orphans  ;  that  those  who  cannot 
march  are  bound  to  pour  out  their  treasures  while  their  sons  or  brothers 
are  pouring  out  their  blood  to  suppress  a  servile,  combined  with  a  civil 
or  a  foreign  war ;  and  yet  that  there  exists  no  power  beyond  the  limits 
of  the  slave  State  where  such  war  is  raging  to  emancipate  the  slaves. 
I  say,  let  this  be  proved  —  I  am  open  to  conviction  ;  but  till  that  con- 
viction comes,  I  put  it  forth,  not  as  a  dictate  of  feeling,  but  as  a  settled 
maxim  of  the  laws  of  nations,  that,  in  such  a  case,  the  military  super- 
11 


82  CONSTITUTION    OF   THE   UNITED    STATES. 

sedes  the  civil  power ;  and  on  this  account  I  should  have  been  obliged 
to  vote,  as  I  have  said,  against  one  of  the  resolutions  of  my  excellent 
friend  from  Ohio,  (Mr.  Giddings,)  or  should  at  least  have  required  that 
it  be  amended  in  conformity  with  the  constitution  of  the  United  States.'* 

CONCLUSION. 

It  has  thus  been  proved,  that  by  the  law  and  usage  of 
modern  civilized  nations,  confirmed  by  the  judgment  of 
eminent  statesmen,  and  by  the  former  practice  of  this 
government,  that  the  President,  as  commander-in-chief, 
has  the  authority,  as  an  act  of  war,  to  liberate  the 
slaves  of  the  enemy,  that  the  United  States  have  in 
former  times  sanctioned  the  ^liberation  of  slaves  even 
of  loyal  citizens,  by  military  commanders,  in  time  of 
war,  without  compensation  therefor  ;  and  have  deemed 
slaves  captured  in  war  from  belligerent  subjects  as 
entitled  to  their  freedom.* 

»  GENERAL  WAR  POWERS  OF  THE  PRESIDENT.  It  is  not  intended  in  this 
chapter  to  explain  the  general  war  powers  of  the  President.  They  are  princi- 
pally contained  in  the  Constitution,  Art.  II.  Sect.  1,  Cl.  1  and  7  ;  Sect.  2,  Cl.  1 ; 
Sect.  3,  Cl.  1 ;  and  in  Sect.  1,  Cl.  1,  and  hy  necessary  implication  in  Art.  I. 
Sect.  9,  Cl.  2.  By  Art.  II.  Sect.  2,  the  President  is  made  commander-in-chief 
of  the  army  and  navy  of  the  United  States,  and  of  the  militia  of  the  several 
States  when  called  into  the  service  of  the  United  States.  This  clause  gives 
ample  powers  of  war  to  the  President,  when  the  army  and  navy  are  lawfully  in 
"  actual  service."  His  military  authority  is  supreme,  under  the  constitution, 
while  governing  and  regulating  the  land  and  naval  forces,  and  treating  captures 
on  land  and  water  in  accordance  with  such  rules  as  Congress  may  have  passed 
in  pursuance  of  Art.  I.  Sect.  8,  Cl.  11,  14.  -Congress  may  effectually  con- 
trol the  military  power,  by  refusing  to  vote  supplies,  or  to  raise  troops, 
and  by  impeachment  of  the  President ;  but  for  the  military  movements,  and 
measures  essential  to  overcome  the  enemy,  —  for  the  general  conduct  of  the 
war,  —  the  President  is  responsible  to  and  controlled  by  no  other  department  of 
government.  His  duty  is  to  uphold  the  constitution  and  enforce  the  laws,  and 
to  respect  whatever  rights  loyal  citizens  are  entitled  to  enjoy  in  time  of  civil 
war,  to  the  fullest  extent  that  may  be  consistent  with  the  performance  of  the 
military  duty  imposed  on  him.  The  effect  of  a  state  of  war,  in  changing  or  mod- 
ifying civil  rights,  has  been  explained  in  the  preceding  chapters. 

What  is  the  extent  of  the  military  power  of  the  President  over  the  persons 
and  property  of  citizens  at  a  distance  from  the  seat  of  war  —  whether  he  or 
the  war  department  may  lawfully  order  the  arrest  of  citizens  in  loyal  states  on 
reasonable  proof  that  they  are  either  enemies  or  aiding  the  enemy  —  or  that 
they  are  spies  or  emissaries  of  rebels  sent  to  gain  information  for  their  use,  of 


WAR   POWER   OF   THE   PRESIDENT.  83 

to  discourage  enlistments  —  whether  martial  law  may  be  extended  over  such 
places  as  the  commander  deems  it  necessary  to  guard,  even  though  distant  from 
any  battle  field,  in  order  to  enable  him  to  prosecute  the  war  effectually  — 
•whether  the  writ  of  habeas  corpus  may  be  suspended  as  to  persons  under  mili- 
tary arrest,  by  the  President,  or  only  by  Congress,  (on  which  point  judges  of 
the  United  States  courts  disagree)  ;  whether,  in  time  of  war,  all  citizens  are  liable 
to  military  arrest,  on  reasonable  proof  of  their  aiding  or  abetting  the  enemy  — 
or  whether  they  are  entitled  to  practise  treason  until  indicted  by  some  grand  jury 
—  thus,  for  example,  whether  Jefferson  Davis,  or  General  Lee,  if  found  in  Bos- 
ton, could  be  arrested  by  military  authority  and  sent  to  Fort  Warren  ?  Whether, 
in  the  midst  of  wide-spread  and  terrific  war,  those  persons  who  violate  the  laws 
of  war  and  the  laws  of  peace,  traitors,  spies,  emissaries,  brigands,  bush-whackers, 
guerrillas,  persons  in  the  free  States  supplying  arms  and  ammunition  to  the 
enemy,  must  all  be  proceeded  against  by  civil  tribunals  only,  under  due  forms 
and  precedents  of  law,  by  the  tardy  and  ineffectual  machinery  of  arrests  by 
marshals,  (who  can  rarely  have  means  of  apprehending  them,)  and  of  grand 
juries,  (who  meet  twice  a  year,  and  could  seldom  if  ever  seasonably  secure  the 
evidence  on  which  to  indict  them)  ?  Whether  government  is  not  entitled  by 
military  power  to  PREVENT  the  traitors  and  spies,  by  arrest  and  imprisonment, 
from  doing  the  intended  mischief,  as  well  as  to  punish  them  after  it  is  done  ? 
Whether  war  can  be  carried  on  successfully,  without  the  power  to  save  the 
army  and  navy  from  being  betrayed  and  destroyed,  by  depriving  any  citizen 
temporarily  of  the  power  of  acting  as  an  enemy,  whenever  there  is  reasonable 
cause  to  suspect  him  of  being  one  ?  Whether  these  and  similar  proceedings 
are,  or  are  not,  in  violation  of  any  civil  rights  of  citizens  under  the  constitution, 
are  questions  to  which  the  answers  depend  on  the  construction  given  to  the  war 
powers  of  the  Executive.  Whatever  any  commander-in-chief,  in  accordance 
with  the  usual  practice  of  carrying  on  war  among  civilized  nations,  may  order 
his  army  and  navy  to  do,  is  within  the  power  of  the  President  to  order  and  to 
execute,  because  the  constitution,  in  express  terms,  gives  him  the  supreme 
command  of  both.  If  he  makes  war  upon  a  foreign  nation,  he  should  be  gov- 
erned by  the  law  of  nations  ;  if  lawfully  engaged  in  civil  war,  he'taay  treat  his 
enemies  as  subjects  and  as  belligerents. 

The  constitution  provides  that  the  government  and  regulation  of  the  land 
and  naval  forces,  and  the  treatment  of  captures,  should  be  according  to  law ; 
but  it  imposes,  in  express  terms,  no  other  qualification  of  the  war  power  of  the 
President.  It  does  not  prescribe  any  territorial  limits,  within  the  United 
States,  to  which  his  military  operations  shall  be  restricted  ;  nor  to  which  the 
picket  guard,  or  military  guards  (sometimes  called  provost  marshals)  shall  be 
confined.  It  does  not  exempt  any  person  making  war  upon  the  country,  or 
aiding  and  comforting  the  enemy,  from  being  captured,  or  arrested,  wherever 
he  may  be  found,  whether  within  or  out  of  the  lines  of  any  division  of  the  army. 
It  does  not  provide  that  public  enemies,  or  their  abettors,  shall  find  safe  asylum 
in  any  part  of  the  United  States  where  military  power  can  reach  them.  It 
requires  the  President,  as  an  executive  magistrate,  in  time  of  peace  to  see  that 
the  laws  existing  in  time  of  peace  are  faithfully  executed  —  and  as  commander- 
in-chief,  in  time  of  war,  to  see  that  the  laws  of  war  are  executed.  In  doing  both 
duties  he  is  strictly  obeying  the  constitution. 


84  CONSTITUTION    OF   THE   UNITED   STATES. 


CHAPTER    IV. 

BILLS    OF    ATTAINDER. 

AFTER  the  authority  of  government  shall  have  been 
reestablished  over  the  rebellious  districts,  measures 
may  be  taken  to  punish  individual  criminals. 

The  popular  sense  of  outraged  justice  will  embody 
itself  in  more  or  less  stringent  legislation  against 
those  who  have  brought  civil  war  upon  us.  It  would 
be  surprising  if  extreme  severity  were  not  demanded 
by  the  supporters  of  the  Union  in  all  sections  of  the 
country.  Nothing  short  of  a  general  bill  of  attainder, 
it  is  presumed,  will  fully  satisfy  some  of  the  loyal 
people  of  the  slave  States. 

BILLS  OF  ATTAINDER  IN  ENGLAND. 

By  these  statutes,  famous  in  English  political  his- 
tory, tyrannical  governments  have  usually  inflicted 
their  severest  revenge  upon  traitors.  The  irresistible 
power  of  law  has  been  evoked  to  annihilate  the  crimi- 
nal, as  a  citizen  of  that  State  whose  majesty  he  had 
offended,  and  whose  existence  he  had  assailed.  His 
life  was  terminated  with  horrid  tortures ;  his  blood  was 
corrupted,  and  his  estates  were  forfeited  to  the  king. 
While  still  living,  he  was  deemed,  in  the  language  of 
the  law,  as  "  civiliter  mortuus." 


PUNISHMENT  BY  ATTAINDER. 


The  refined  cruelty  which  characterized  the  punish- 
ment of  treason,  according  to  the  common  law  of  Eng- 


ATTAINDER.  85 

land,  would  have  been  discreditable  to  the  barbarism 
of  North  American  savages  in  the  time  of  the  Georges, 
and  has  since  been  equalled  only  by  some  specimens  of 
chivalry  in  the  secession  army.  The  mode  of  executing 
these  unfortunate  political  offenders  was  this  :  — 

1.  The  culprit  was  required  to  be  dragged  on  the 
ground  or  over  the  pavement  to  the  gallows ;  he  could 
not  be  allowed,  by  law,  to  walk  or  ride.     Blackstone 
says,  that  by  connivance,  at  last  ripened  into  law,  he  was 
allowed  to  be  dragged  upon  a  hurdle,  to  prevent  the 
extreme  torment  of  being  dragged  on  the  ground  or 
pavement. 

2.  To  be  hanged  by  the  neck,  and  then  cut  down 
alive. 

3.  His  entrails  to  be  taken  out  and  burned  while  he 
was  yet  alive. 

4.  His  head  to  be  cut  off. 

5.  His  body  to  be  divided  into  four  parts. 

6.  His  head  and  quarters  to  be  at  the  king's  dis- 
posal.* 

Blackstone  informs  us  that  these  directions  were,  in 
former  times,  literally  and  studiously  executed.  Judge 
Story  observes,  they  u  indicate  at  once  a  savage  and 
ferocious  spirit,  and  a  degrading  subserviency  to  royal 
resentments,  real  or  supposed."  -j- 

ATTAINDERS  PROHIBITED  AS  INCONSISTENT  WITH    CONSTITUTIONAL 

LIBERTY. 

Bills  of  attainder  struck  at  the  root  of  all  civil  rights 
and  political  liberty.  To  declare  single  individuals,  or 

*  4  Bla.  Com.  92. 

t  Lord  Coke  undertakes  to  justify  the  severity  of  this  punishment  by 
examples  drawn  from  Scripture. 


86  •       CONSTITUTION   OF   THE   UNITED    STATES. 

a  large  class  of  persons,  criminals,  in  time  of  peace, 
merely  upon  the  ground  that  they  entertained  certain 
opinions  upon  questions  of  church  or  state ;  to  do  this 
by  act  of  Parliament,  without  a  hearing,  or  after  the 
death  of  the  alleged  offender;  to  involve  the  innocent 
with  the  guilty  in  indiscriminate  punishment,  —  Avas  an 
outrage  upon  the  rights  of  the  people  not  to  be  toler- 
ated in  our  constitution  as  one  of  the  powers  of  gov- 
ernment. 

BILLS   OF   ATTAINDER  ABOLISHED. 

The  constitution  provides  expressly,  *  that  u  no  bill 
of  attainder,  or  ex  post  facto  law,  shall  be  passed  by  Con- 
gress ;  and  that  no  State  shall  pass  any  bill  of  attainder, 
ex  post  facto  law,  or  law  impairing  the  obligation  of  con- 
tracts." f  There  is,  therefore,  no  power  in  this  country 
to  pass  any  bill  of  attainder. 

WHAT  IS   A  BILL  OF  ATTAINDER? 

Wherein  does  it  differ  from  other  statutes  for  the 
punishment  of  criminals  ? 

A  "bill  of  attainder,"  in  the  technical  language  of 
the  law,  is  a  statute  by  which  the  offender  becomes 
"  attainted,"  and  is  liable  to  punishment  without  having 
been  convicted  of  any  crime  in  the  ordinary  course  of 
judicial  proceedings. 

If  a  person  be  expressly  named  in  the  bill,  or  comes 
within  the  terms  thereof,  he  is  liable  to  punishment. 
The  legislature  undertakes  to  pronounce  upon  the  guilt 
of  the  accused  party.  He  is  entitled  to  no  hearing, 
when  living,  and  may  be  pronounced  guilty  when  ab- 

*  Art.  I.  Sect.  9.  f  Art.  I.  Sect.  10. 


ATTAINDER.  87 

sent  from  the  country,  or  even  long  after  his  death. 
Lord  Coke  says  that  the  reigning  monarch  of  England, 
who  was  slain  at  Bos  worth,  is  said  to  have  been  at- 
tainted by  act  of  Parliament  a  few  months  after  his 
death,  notwithstanding  the  absurdity  of  deeming  him 
at  once  in  possession  of  a  throne  and  a  traitor.* 

A  question  has  been  raised,  whether  any  statute  can 
be  deemed  a  bill  of  attainder  if  it  inflicts  a  degree  of 
punishment  le«s  than  that  of  death  ? 

In  technical  law,  statutes  were  called  bills  of  attainder 
only  when  they  inflicted  the  penalty  of  death  or  out- 
lawry ;  while  statutes  which  inflicted  only  forfeitures, 
fines,  imprisonments,  and  similar  punishments,  were 
called  bills  of  "  pains  and  penalties."  This  distinction 
was  practically  observed  in  the  legislation  of  England. 
No  bill  of  attainder  can  probably  be  found  which  did 
not  contain  the  marked  feature  of  the  death  penalty, 
or  the  penalty  of  outlawry,  which  was  considered  as 
equivalent  to  a  judgment  of  death.  Judgment  of  out- 
lawry on  a  capital  crime,  pronounced  for  absconding  or 
fleeing  from  justice,  was  founded  on  that  which  was  in 
law  deemed  a  tacit  confession  of  guilt,  f 

BILLS   OF   PAINS  AND  PENALTIES. 

It  has  been  said  that  within  the  sense  of  the  consti- 
tution, bills  of  attainder  include  bills  of  pains  and 
penalties  ;  and  this  view  seemed  to  derive  support  from 
a  remark  of  a  judge  of  the  Supreme  Court,  "A  bill  of 
attamder  may  affect  the  life  of  an  individual,  or  may 
confiscate  his  property,  or  both."  J 


*  See  Story  on  the  Constitution,  B.  III.  Sect.  678. 

t  Standf.  PI.  Co.  44,  122,  182.  J  Fletcher  v.  Peck,  6  Cranch,  R. 


88  CONSTITUTION    OF   THE    UNITED    STATES. 

It  is  true  that  a  bill  of  attainder  may  affect  the  life 
of  an  individual ;  but  if  the  individual  attainted  were 
dead  before  the  passage  of  the  act,  as  was  the  case  with 
Richard  III.,  the  bill  could  not  affect  his  life ;  or  if  a 
bill  of  attainder  upon  outlawry  were  passed  against 
persons  beyond  seas,  the  life  of  the  party  would  not  be 
in  fact  affected,  although  the  outlawry  was  equivalent 
in  the  eye  of  the  law  to  civil  death.  There  is  nothing 
in  this  dictum  inconsistent  with  the  ancient  and  ac- 
knowledged distinction  between  bills  of  attainder  and 
bills  of  pains  and  penalties ;  nothing  which  would  au- 
thorize the  enlargement  of  the  technical  meaning  of 
the  words ;  nothing  which  shows  that  Judge  Marshall 
deemed  that  bills  of  attainder  included  bills  of  pains 
and  penalties  within  the  sense  of  the  constitution. 
This  dictum  is  quoted  by  Judge  Story,*  who  supposed 
its  meaning  went  beyond  that  which  is  now  attributed 
to  it.  But  he  does  not  appear  to  sanction  such  a  view 
of  the  law.  This  is  the  only  authority  to  which  he 
refers ;  and  he  introduces  the  proposed  construction 
of  this  clause  by  language  which  is  used  by  lawyers 
who  have  little  confidence  in  the  result  which  the  au- 
thority indicates,  viz.,  "  it  seems."  No  case  has  been 
decided  by  the  Supreme  Court  of  the  United  States 
which  shows  that  "  bills  of  attainder,"  within  the  sense 
of  the  constitution,  include  any  other  statutes  than 
those  which  were  technically  so  considered  according 
to  the  law  of  England. 

% 

EX  POST    FACTO    LAWS    PROHIBITED.     BILLS  OF   PAINS   AND    PENAL- 
TIES,  AS  WELL  AS  ATTAINDERS,  UNCONSTITUTIONAL. 

It  does  not  seem  important  whether  the  one  or  the 
other  construction  be  put  upon  the  language  of  this 

*  Com.  Const.  ILL.  Ch.  32,  Sect.  3. 


ATTAINDER.  89 

clause,  nor  whether  bills  of  pains  and  penalties  be  or  be 
not  included  within  the  prohibition ;  for  Congress  can 
pass  no  ex  post  facto  law ;  and  it  was  one  of  the  invari- 
able characteristics  of  bills  of  attainder,  and  of  bills  of 
pains  and  penalties,  that  they  were  passed  for  the  pun- 
ishment of  supposed  crimes  which  had  been  committed 
before  the  acts  were  passed. 

The  clause  prohibiting  Congress  from  passing  any 
ex  post  facto  lawT  would  doubtless  have  prevented  their 
passing  any  bill  of  attainder ;  but  this  prohibition  was 
inserted  from  greater  caution,  and  to  prevent  the 
exercise  of  constructive  powers  against  political  of- 
fenders. No  usurpation  of  authority  in  the  worst 
days  of  English  tyranny  was  more  detested  by  the 
framers  of  our  constitution  than  that  which  attempted 
to  ride  over  the  rights  of  Englishmen  to  gratify  royal 
revenge  against  the  friends  of  free  government.  Hence 
in  that  respect  they  shut  down  the  gate  upon  this  sov- 
ereign power  of  government.  They  forbade  any  pun- 
ishment, under  any  form,  for  crime  not  against  some 
standing  law,  which  had  been  enacted  before  the  time 
of  its  commission.  They  prevented  Congress  from  pass- 
ing any  attainder  laws,  whereby  the  accused  might  be 
deprived  of  his  life,  or  his  estate,  or  both,  without  trial 
by  jury,  and  by  his  political  enemies;  and  whereby 
also  his  relatives  would  suffer  equally  with  himself. 

ATTAINDERS  IN  THE  COLONIES  AND  STATES. 

Bills  in  the  nature  of  bills  of  attainder  were  familiar 
to  our  ancestors  in  most  of  the  colonies  and  in  the 
States  which  subsequently  formed  the  Union.  And 
several  of  these  acts  of  attainder  have  been  pronounced 
valid  by  the  highest  courts  in  these  States.  By  the 
12 


90  CONSTITUTION   OF   THE   UNITED   STATES. 

act  of  the  State  of  New  York,  October  22, 1775,  the 
real  and  personal  property  of  persons  adhering  to  the 
enemy  was  forfeited  to  the  State  ;  and  this  act  has  been 
held  valid,*  and  proceedings  under  acts  of  attainder 
were,  as  the  court  held,  to  be  construed  according  to 
the  rules  in  cases  of  attainder,  and  not  by  the  ordinary 
course  of  judicial  proceedings ;  f  and  these  laws  ap- 
plied to  persons  who  were  dead  at  the  time  of  the  pro- 
ceedings. J 

"Bills  of  attainder,"  says  the  learned  judge,  (in  2 
Johnson's  Cases,)  "have  always  been  construed  in 
this  respect  with  more  latitude  than  ordinary  judicial 
proceedings,  for  the  purpose  of  giving  them  more  cer- 
tain effect,  and  that  the  intent  of  the  legislature  may 
prevail."  "  They  are  extraordinary  acts  of  sovereignty, 
founded  on  public  policy  §  and  the  peace  of  the  com- 
munity." "  The  attainted  person,"  says  Sir  Matthew 
Hale,  "  is  guilty  of  the  execrable  murder  of  the  king." 
The  act  of  New  York,  October  22,  1779,  attainted, 
among  others,  Thomas  Jones  of  the  offence  of  adhering 
to  the  enemies  of  the  State.  This  was  a  specific  offence, 
and  was  not  declared  Or  understood  to  amount  to  trea- 
son, because  many  of  the  persons  attainted  had  never 
owed  allegiance  to  the  State.  || 

Bills  of  attainder  were  passed  not  only  in  New  York, 
but  in  several  other  colonies  and  States,  inflicting  the 
penalties  of  attainder  for  other  crimes  than  treason, 
actual  or  constructive.  And  the  harsh  operation  of 
such  laws,  their  injustice,  and  their  liability  to  be  abused 

*  Sleight  v.  Kane,  2  Johns.  Cas.  236,  decided  in  April,  1801. 
f  Jackson  v.  Sands,  2  Johns.  267. 

J  Jackson  \.  Stokes,  3  Johns.  15.  §  Foster,  83,  84. 

,|  Jackson  v.  Catlin,  2  Johns.  R.  260. 


ATTAINDER.  91 

in  times  of  public  excitement,  were  understood  by  these 
who  laid  the  foundations  of  this  government  too  well 
to  permit  them  to  disregard  the  dangers  which  they 
sought  to  avert,  by  depriving  Congress,  as  well  as  the 
several  States,  of  all  power  to  enact  such  cruel  statutes. 
If  bills  of  attainder  had  been  passed  only  for  the 
punishment  of  treason,  in  the  sense  of  making  war 
upon  the  government,  or  aiding  the  enemy,  they  would 
have  been  less  odious  and -less  dangerous  ;  but  the  reoi- 

O  '  O 

ment  of  crimes  which  servile  .Parliaments  had  enrolled 
under  the  title  of  "  treason,"  had  become  so  formidable, 
and  the  brutality  of  the  civil  contests  in  England  had 
been  so  shocking,  that  it  was  thought  unsafe  to  trust 
any  government  with  the  arbitrary  and  irresponsible 
power  of  condemning  by  statute  large  classes  of  their 
opponents  to  death  and  destruction  for  that  which  only 

want  of  success  had  made  a  crime. 

» 

BILLS   OF  ATTAINDER,   HOW  RECOGNIZED. 

The  consequences  of  attainder  to  the  estate  of  the 
party  convicted  will  be  more  fully  stated  hereafter ; 
but  it  is  essential  to  observe  that  there  are  certain  char- 
acteristics which  distinguish  bills  of  attainder  from  all 
other  penal  statutes. 

1.  They  always  inflict  the  penalty  of  death  upon  the 
offender,  or  of  outlawry,  which  is  equivalent  to  death. 

2.  They  are  always  ex  post  facto  laws,  being  passed 
after   the   crime   was    committed  which  they  are    to 
punish. 

3.  They  never  allow  the  guilt  or  innocence  of  the 
persons  attainted  to  be  ascertained  by  trial ;  but  the 
guilt  is  attributed  to  them  by  act  of  Parliament, 

4.  They   always   inflicted   certain  penalties,  among 


92  CONSTITUITON    OF   THE   UNITED    STATES. 

which  were  corruption  of  blood  and  forfeiture  of  estate. 
The  essence  of  attainder  was  in  corruption  of  blood, 
and  without  the  corruption  of  blood  no  person  was  by 
the  English  law  attainted. 

Unless  a  law  of  Congress  shall  contain  these  four 
characteristics  —  penalty  of  death,  or  outlawry,  corrup- 
tion of  blood,  and  the  legislative,  not  judicial  condem- 
nation —  embodied  in  a  law  passed  after  the  commis- 
sion of  the  crime  it  seeks  to  punish,  it  is  not  a  bill  of 
attainder  under  the  sense  of  the  constitution. 


PUNISHMENT    OF   TREASON.  93 

-•KI 
CHAPTER   V. 

RIGHT  OF  CONGRESS  TO  DECLARE  BY  STATUTE  THE  PUN- 
ISHMENT OF  TREASON,  AND  ITS  CONSTITUTIONAL  LIMI- 
TATIONS. 

TREASON. 

THE  highest  crime  known  to  the  law  is  treason.  It  is 
K  the  sum  of  all  villanies ; "  its  agents  have  been  branded 
with  infamy  in  all  countries  where  fidelity  and  justice 
have  respect.  The  name  of  one  who  betrays  his  friend 
becomes  a  byword  and  a  reproach.  How  much  deeper 
are  the  guilt  and  infamy  of  the  criminal  who  betrays 
his  country  !  No  convict  in  our  State  prisons  can  have 
fallen  so  low  as  willingly  to  associate  with  a  TRAITOR. 
There  is  no  abyss  of  crime  so  dark,  so  horrible,  as  that 
to  which  the  traitor  has  descended.  He  has  left  for- 
ever behind  him  conscience,  honor,  and  hope. 

ANCIENT    ENGLISH    DOCTRINE    OF  CONSTRUCTIVE  TREASON. 

Treason,  as  defined  in  the  law  of  England,  at  the 
date  of  the  constitution,  embraced  many  misdemeanors 
which  are  not  now  held  to  be  crimes.  Offences  of  a  po- 
litical character,  not  accompanied  with  any  intention  to 
subvert  the  government ;  mere  words  of  disrespect  to 
the  ruling  sovereign;  assaults  upon  the  king's  officers 
at  certain  times  and  places ;  striking  one  of  the  judges 
in  court;  and  many  other  acts  which  did  not  partake 
of  the  nature  of  treason,  were,  in  ancient  times,  declared 
treason  by  Parliament,  or  so  construed  by  judges,  as 
to  constitute  that  crime.  Indeed,  there  was  nothing  to 


94  CONSTITUTION    OF   THE   UNITED    STATES. 

prevent  Parliament  from  proclaiming  any  act  of  a  sub- 
ject to  be  treason,  thereby  subjecting  him  to  all  its  ter- 
rible penalties.  The  doctrine  of  constructive  treasons, 
created  by  servile  judges,  who  held  their  office  during 
the  pleasure  of  the  king,  was  used  by  them  in  such  a 
way  as  to  enable  the  sovereign  safely  to  wreak  ven- 
geance upon  his  victims  under  the  guise  of  judicial 
condemnation.  If  the  king  sought  to  destroy  a  rival, 
the  judges  would  pronounce  him  guilty  of  constructive 
treason;  in  other  words,  they  would  so  construe  the 
acts  of  the  defendant  as  to  make  them  treason.  Thus 
the  king  could  selfishly  outrage  every  principle  of 
law  and  justice,  while  avoiding  responsibility.  No 
man's  life  or  property  was  safe.  The  wealthier  the 
citizen,  the  greater  was  his  apprehension  that  the  king 
would  seize  and  confiscate  his  estates.  The  danger 
lay  in  the  fact  that  the  nature  and  extent  of  the  legal 
crime  of  treason  was  indeterminate,  or  was  left  to 
arbitrary  determination.  The  power  to  define  treason, 
to  declare  from  time  to  time  who  should  be  deemed  in 
law  to  be  traitors,  was  in  its  nature  an  arbitrary  power. 
No  government  having  that  power  would  fail  to  become 
oppressive  in  times  of  excitement,  and  especially  in 
civil  war.  As  early  as  the  reign  of  Edward  III.,  Parlia- 
ment put  an  end  to  these  judge-made-treasons  by  de- 
claring and  defining  all  the  different  acts  which  should 
be  deemed  treason ;  and,  although  subsequent  statutes 
have  added  to  or  modified  the  law,  yet  treason  has  at 
all  times  since  that  reign  been  defined  by  statute. 

POWER    OF  CONGRESS  TO    DEFINE    AND    PUNISH    TREASON   LIMITED. 

It  was  with  full  knowledge  of  the  history  of  judicial 
usurpation,   of  the   tyranny   of   exasperated   govern- 


PUNISHMENT   OF  TREASON.  95 

ments,  and  of  the  tendency  of  rival  factions  in  repub- 
lics to  seek  revenge  on  each  other,  that  the  convention 
which  framed  the  constitution,  having  given  no  power 
to  the  judiciary,  like  that  possessed  by  English  judges, 
to  make  constructive  crimes,  introduced  several  pro- 
visions limiting  the  power  of  Congress  to  define  and 
punish  the  political  crime  of  treason,  as  well  as  other 
offences. 

The  various  'clauses  in  the  ""constitution  relating  to 
this  subject,  in  order  to  a  clear  exposition  of  their 
meaning,  should  be  taken  together  as  parts  of  our 
system. 

ATTAINDER  AND   EX   POST   FACTO  LAWS. 

The  first  and  most  important  limitation  of  the  power 
of  Congress  is  found  in  Art.  I.  Sect.  9  :  "  No  bill  of 
attainder,  of  ex  post  facto  law,  shall  be  passed."  By  pro- 
hibiting bills  of  attainder,  no  subject  could  be  made  a 
criminal,  or  be  deprived  of  life,  liberty,  or  property,  by 
mere  act  of  legislation,  without  trial  or  conviction.  The 
power  to  enact  ex  post  facto  laws  having  been  with- 
held, Congress  could  not  pass  "a  statute  which  would 
render  an  act  punishable  in  a  manner  in  which  it  was 
not  punishable  when  it  was  committed."  No  man's 
life  could  be  taken,  his  liberty  abridged,  nor  his  estate, 
nor  any  part  of  it,  seized  for  an  act  which  had  not,  pre- 
viously to  the  commission  thereof,  been  declared  by 
some  law  as  a  crime,  and  the  manner  and  extent  of 
punishment  prescribed.*  Hence  no  law  of  Congress 
can  make  that  deed  a  crime  which  was  not  so  before 
the  deed  was  done.  Every  man  may  know  what  are  the 

*  See  Fletcher  v.  Peck,  6  Cranch,  138. 


96  CONSTITUTION    OF   THE   UNITED    STATES. 

laws  to  which  he  is  amenable  in  time  of  peace  by  read- 
ing the  statutes.  There  can  be  no  retrospective  crimi- 
nal legislation  by  any  State,  or  by  the  United  States. 

TREASON  DEFINED  BY  STATUTE. 

These  points  having  been  secured,  the  next  step  was 
to  define  the  CRIME  OP  TREASON.  Countless  difficulties  and 
dangers  were  avoided  by  selecting  from  the  English 
statutes  one  crime  only,  which  should  be  deemed  to  con- 
stitute that  offence. 

The  constitution  provides  that,  "  Treason  against  the 
United  States  shall  consist  only  in  levying  war  against 
them,  or  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort."  *  Hence  many  acts  are  not  treasonable 
which  were  so  considered  according  to  the  law  of  Eng- 
land, and  of  the  colonies  and  States  of  this  country. 
Each  State  still  retains  the  power  to  define*  and  punish 
treason  against  itself  in  its  own  way. 

Nothing  but  overt  acts  are  treasonable  by  the  laws  of 
the  United  States ;  and  these  overt  acts  must  be  overt 
acts  of  war.-j-  These  acts  must  be  proved  either  by 
confession  in  open  court,  or  by  two  witnesses  to  the 
same  act.  t  Our  ancestors  took  care  that  no  one 

•r 

should  be  convicted  of  this  infamous  crime,  unless  his 
guilt  is  made  certain.  So  odious  was  the  offence 
that  even  a  senator  or  representative  could  be  arrested 
on  suspicion  of  it.  §  All  civil  officers  were  to  be  removed 
from  office  on  impeachment  and  conviction  thereof.  || 
And  a  person  charged  with  treason  against  a  State,  and 
fleeing  from  that  State  to  another,  was  to  be  delivered 

*  Art.  III.  Sect.  3.  t  Ibid,  t  Ibid. 

§  Art.  L  Sect.  6.  ||  Art  II.  Sect.  4. 


PUNISHMENT    OF   TREASON.  97 

up,  on  demand,  to  the  State  having  jurisdiction.*  The 
crime  being  defined,  and  the  nature  of  the  testimony 
to  establish  it  being  prescribed,  and  conviction  being 
possible  only  in  "  open  court,"  the  constitution  then 
provides,  —  that  "  Congress  shall  have  power  to  declare 
the  punishment  of  treason,  but  no  attainder  of  treason 
shall  work  corruption  of  blood,  or  forfeiture,  except 
during  the  life  of  the  person  attainted."-]-- 

CONGRESS  HAVE  UNLIMITED  POWER  TO  DECLARE   THE   PUNISHMENT 

OP  TREASON. 

By  this  article,  the  constitution  has  in  express  terms 
given  to  Congress  the  power  to  declare  the  punishment 
of  treason ;  and  the  nature  and  extent  of  the  punish- 
ment which  they  may  declare  are  not  limited.  Congress 
may  impose  the  penalty  of  fine,  or  imprisonment,  or 
outlawry,  or  banishment,  or  forfeiture,  or  death,  or  of 
death  and  forfeiture  of  property,  personal  and  real. 
Congress  might  have  added  to  all  these  punishments 
the  more  terrible  penalty  which  followed,  as  a  conse- 
quence of  attainder  of  treason,  under  the  law  of  England, 
had  the  constitution  not  limited  the  effect  and  opera- 
tion of  that  species  of  attainder. 

A  COMMON   ERROR. 

Some  writers  have  supposed  that  this  article 'in  the 
constitution,  which  qualifies  the  effect  of  an  attainder 
of  treason,  was  a  limitation  of  the  power  of  Congress  to 
declare  the  punishment  of  treason.  This  is  an  error.  A 
careful  examination  of  the  language  used  in  the  in- 

*  Constitution,  Art  IV.  Sect  6.  f  Art-  HL  Sect.  3. 

13 


98  CONSTITUTION    OF   THE    UNITED    STATES. 

strument  itself,  and  of  the  history  of  the  English  law 
of  attainder,  will  make  it  evident  that  the  framers  of 
the  constitution,  in  drafting  Sect.  3  of  Art.  III.  did  not 
design  to  restrain  Congress  from  declaring  against  the 
traitor  himself,  his  person  or  estate,  such  penalties 
as  it  might  deem  sufficient  to  atone  for  the  highest  of 
crimes. 

Whenever  a  person  had  committed  high  treason  in 
England,  and  had  been  duly  indicted,  tried,  and  con- 
victed, and  when  final  judgment  of  guilty,  and  sentence 
of  death  or  outlawry,  had  been  pronounced  upon  him, 
the  immediate  and  inseparable  consequence,  by  com- 
mon law,  of  the  sentence  of  death  or  outlawry  of  the 
offender  for  treason,  and  for  certain  other  felonies,  was 
attainder.  Attainder  means,  in  its  original  application, 
the  staining  or  corruption  of  the  blood  of  a  criminal 
who  was  in  the  contemplation  of  law  dead.  He  then 

became  "  attinctus  — -  stained,  blackened,  attainted." 

;  ' 

CONSEQUENCES  OF  ATTAINDER. 

Certain  legal  results  followed  from  attainder,  among 
which  are  the  following :  The  convict  was  no  longer  of 
any  credit  or  reputation.  He  could  not  be  a  witness 
in  any  court.  He  was  not  capable  of  performing  the 
legal  functions  of  any  other  man ;  his  power  to  sell  or 
transfer  his  lands  and  personal  estate  ceased.  By  anti- 
cipatidn  of  his  punishment  he  was  already  dead  in  law,* 
except  when  the  fiction  of  the  law  would  protect  him 
from  some  liability  to  others  which  he  had  the  power 
to  discharge.  It  is  true  that  the  attainted  felon  could 
not  be  murdered  with  impunity  ,f  but  the  law  preserved 

*  3  lust.  213.  t  Foster,  73. 


PUNISHMENT   OF   TREASON.  99 

his  physical  existence  only  to  vindicate  its  own  majestj^ 
and  to  inflict  upon  the  offender  an  ignominious  death. 

CORRUPTION   OF  BLOOD. 

Among  the  most  important  consequences  of  attainder 
of  felony,  were  those  resulting  from  "corruption  <of  blood" 
which  is  the  essence  of  attainder:'*  Blackstone  says,f  — 

"  Another  immediate  consequence  of  attainder  is  the  corruption  of 
blood,  both  upwards  and  downwards  ;  so  that  an  attainted  person  can 
neither  inherit  lands  or  other  hereditaments  from  his  ancestors,  nor 
retain  those  he  is  already  in  possession  of,  nor  transmit  them  by  descent 
to  any  heir ;  but  the  same  shall  escheat  to  the  lord  of  the  fee,  subject 
to  the  king's  superior  right  of  forfeiture ;  and  the  person  attainted 
shall  also  obstruct  all  descents  to  his  posterity  whenever  they  are 
obliged  to  derive  a  title  through  him,  to  a  remote  ancestor." 

The  distinctions  between  escheat  and  forfeiture  it  is 
not  necessary  now  to  state,  J  because,  whether  the  for- 
feiture enured  to  the  benefit  of  the  lord  or  of  the  king, 
the  effect  was  the  same  upon  the  estate  of  the  criminal.  § 
By  this  legal  fiction  of  corruption  of  blood,  the  offender 
was  deprived  of  all  his  estate,  personal  and  real;  his 
children  or  other  heirs  could  not  inherit  any  thing  from 
him,  nor  through  him  from  any  of  his  ancestors.  u  If 
a  father  be  seized  in  fee,  and  the  son  commits  treason 
and  is  attainted,  and  then  the  father  dies,  then  the 
lands  shall  escheat  to  the  lord."  || 

SAVAGE  CRUELTY  OP  ENGLISH  LAW. 

By  the  English  system  of  escheats  to  the  lord  and 
forfeitures  to  the  king,  the  innocent  relatives  of  the 
offender  were  punished,  upon  the  theory  that  it  was 

*  See  Co.  Litt.  391.  f  4  Com.  b.   388.  J  See  Co.  Litt.  13. 

$  Co.  Litt.  p.  391.    Bla.  Com.  Vol.  II.  p.  254  Jl  Co.  Litt.  p.  13. 


100  CONSTITUTION    OF   THE   UNITED    STATES. 

the  duty  of  every  family  to  secure  the  loyalty  of  all  its 
members  to  the  sovereign ;  and  upon  failure  to  do  so, 
the  whole  family  should  be  plunged  into  lasting  dis- 
grace and  poverty.  A  punishment  which  might  con- 
tinue for  twenty  generations,  was  indeed  inhuman,  and 
received1,  as  it  merited,  the  condemnation  of  liberal  men 
in  all  countries ;  *  but  aristocratic  influence  in  England 
had  for  centuries  resisted  the  absolute  and  final  aban- 
donment of  these  odious  penalties.  The  frame rs  of 
the  constitution  have  deprived  Congress  of  the  power 
of  passing  bills  of  attainder.  They  might  have  pro- 
vided that  no  person  convicted  of  treason  should  be 
held  to  be  attainted,  or  be  liable  to  suffer  any  of  the 
common  law  penalties  which  resulted  from  attainder, 
but  only  such  penalties  as  Congress  should  prescribe 
by  statute.  They  have,  however,  not  in  terms,  abolished 
attainders,  but  have  modified  their  effect,  by  declaring 
that  attainder  shall  not  work  corruption  of  blood. 


FORFEITURES. 


By  the  law  of  England,  forfeiture  of  estates  was  also 
one  of  the  necessary  legal  consequences  of  attainder  of 
felony.  Real  estate  was  forfeited  upon  attainder,  per- 
sonal estate  upon  conviction  before  attainder.  By 
these  forfeitures  all  the  property,  rights,  and  claims,  of 
every  name  and  nature,  went  to  the  lord  or  the  king. 
But  forfeiture  of  lands  related  back  to  the  time  when 
the  felony  was  committed,  so  as  to  avoid  all  subsequent 
sales  and  encumbrances,  but  forfeiture  of  goods  took 
effect  at  the  date  of  conviction,  so  that  sales  of  person- 
al property,  prior  to  that  time,  were  valid,  unless  col- 

*  See  4  Bla.  Cora.  p.  388. 


PUNISHMENT   OF   TREASON.  101. 

lusive.*  The  estates  thus  forfeited  were  not  mere 
estates  for  life,  but  the  whole  interest  of  the  felon,  what- 
ever it  might  be.  Thus  forfeiture  of  property  was  a 
consequence  of  attainder ;  attainder  was  a  consequence 
of  the  sentence  of  death  or  outlawry ;  and  these  penal 
consequences  of  attainder  were  over  and  above,  and  in 
addition  to,  the  penalties  expressed  in  the  terms  of 
the  judgment  and  sentence  of  the  court.-\  The  punishment, 
and  in  many  instances  the  only  punishment,  to  which 
the  sentence  of  the  court  condemned  the  prisoner,  was 
death  or  outlawry.  The  disabilities  which  resulted  from 
that  sentence  were  like  the  disabilities  which  in  other 
cases  result  from  the  sentence  of  a  criminal  for  in- 
famous crimes.  Disability  to  testify  in  courts,  01  to 
hold  offices  of  trust  and  honor,  sometimes  follows,  not 
as  part  of  the  punishment  prescribed  for  the  offence, 
but  as  a  consequence  of  the  condition  to  which  the 
criminal  has  reduced  himself. 

There  is  a  clear  distinction  between  the  punishment 
of  treason  by  specific  penalties  and  those  consequential 
damages  and  injuries  which  follow  by  common  law  as 
the  result  or  technical  effect  of  a  sentence  of  death  or 
outlawry  for  treason,  viz.,  attainder  of  treason,  and  cor- 
ruption of  blood  and  forfeiture  of  estates.  J  To  set  this 
subject  in  a  clearer  light,  the  learned  reader  will  rec- 
ollect that  there  were  different  kinds  of  attainder: 


*  See  Stat.  13  Eliz.  ch.  5 ;  2  B.  &  A.  258 ;  2  Hawkins's  P.  C.  454 ;  3 
Ins.  232  ;  4  Bla.  387  ;  Co.  Litt.  391,  b. 

f  See  2  GreenleaPs  Cruise  on  Real  Property,  p.  145,  and  note ;  2  Kent, 
386;  1  Greenleafs  Cruise,  p.  71,  sect.  1,  and  note. 

J  There  is  a  provision  in  the  new  constitution  of  Maryland,  (1851,)  that 
"no  conviction  shall  work  corruption  of  blood  or  forfeiture  of  estate." 
(Decl.  of  Rights,  Art.  24.)  The  constitution  of  Ohio  (1851)  contains  the 
same  words  in  the  12th  sect,  of  the  Decl.  of  Rights.  The  constitutions  of 


102  CONSTITUTION    OF   THE   UNITED    STATES. 

1.  Attainders  in  a  prcemunire  ;  in  which,  "  from  the  convic- 
tion, the  defendant  shall  be  out  of  the  king's  protection, 
his  lands,  tenements,  goods,  and  chattels  forfeited  to  the 
king,  and  his  body  remain  in  prison  during  the  king's 
pleasure,  or  during  life."  *  But  the  offences  punishable 
under  the  statutes  of  prcemunire  were  not  felonies,  for 
the  latter  are  punishable  only  by  common  law,  and 
not  by  statute.^  2.  Attainder  by  bill.  3.  Attainders  of 
FELONY  and  treason ;  and  the  important  distinction  be- 
tween attainders  in  treason  and  attainders  in  prcemu- 
nire  is  this :  that  in  the  former  the  forfeitures  are  con- 
sequences of  the  judgment,  in  the  latter  they  are  part 
of  the  judgment  and  penalty.  Blackstone  J  recognizes 
fully  this  distinction.  "  I  here  omit  the  particular  for- 
feitures created  by  the  statutes  of  prcemunire  and 
others,  because  I  look  upon  them  rather  as  a  part  of 
the  judgment  and  penalty  inflicted  by  the  respective 
statutes,  than  as  consequences  of  such  judgment,  as  in 
treason  and  felony  they  are."  Lord  Coke  expresses  the 

Kentucky,  Delaware,  and  Pennsylvania  declare  that  attainder  of  treason  shall 
not  work  forfeiture  beyond  the  lifetime  of  the  offender.  In  Alabama,  Con- 
necticut, Indiana,  Illinois,  Maine,  Missouri,  New  Jersey,  Rhode  Island,  and 
Tennessee,  all  forfeitures  for  crime  are  abolished,  either  by  statutes  or 
constitutions. 

"  In  New  Hampshire,  Massachusetts,  Virginia,  Georgia,  Michigan,  Mis- 
sissippi, and  Arkansas,  there  are  statutes  providing  specifically  for  the  punish- 
ment of  treason  and  felonies  ;  but  no  mention  is  made  of  corruption  of  blood 
or  forfeiture  of  estate ;  and  inasmuch  as  these  offences  are  explicitly  legislated 
upon,  and  a  particular  punishment  provided  in  each  case,  it  may  be  gravely 
doubted  whether  the  additional  common  law  punishment  of  forfeiture  of 
estate  ought  not  to  be  considered  as  repealed  by  implication."  1  Greenleafs 
Cruise  Dig.  196,  note. 

*  1  Inst.  129  ;  3  Bla.  p.  118;  and  for  the  severity  of  the  penalties,  see 
1.  Hawk.  P.  C.  55. 

t  4  Bla.  118.  }  4  Com.  p.  386. 


PUNISHMENT   OF   TREASON.  103 

same  opinion.*  And  statutes  of  praemunire  and  at- 
tainders of  treason  are  both  different  in  law  from  Mils 
of  pains  and  penalties ;  of  which  English  history  affords, 
among  many  other  examples,  that  against  the  Bishop 
of  Rochester ;  f  in  the  latter  the  pains  and  penalties 
are  all  expressly  declared  by  statute,  and  not  left  as 
consequences  of  judgment.  That  clause  in  the  con- 
stitution which  gives  power  to  Congress  to  make  laws 
for  the  punishment  of  treason,  limits  and  qualifies  the 
effect  of  attainder  of  treason,  in  case  such  attainder 
should  be  deemed  by  the  courts  as  a  legal  consequence 
of  such  sentence  as  the  statute  requires  the  court  to 
impose  on  traitors.  This  limitation  applies,  in  terms, 
only  to  the  effect  of  attainders  of  treason. 

CHARACTERISTICS  OF  ATTAINDER  OF  TREASON. 

There  is  no  attainder  of  treason  known  to  the  law 
of  England,  unless,  1.  The  judgment  of  death  or  out- 
lawry has  been  pronounced  against  the  traitor.  J  2. 
Where  the  crime  was  a  felony,  and  punishable  accord- 
ing to  common  law ;  §  and,  3.  Where  the  attainder  was 
a  consequence  of  the  judgment,  and  not  part  of  the 
judgment  and  penalty.  ||  Congress  may  pass  a  law 
condemning  every  traitor  to  death,  and  to  the  conse- 
quential punishment  of"  attainder ; "  but  such  attainder 
will  not  of  itself  operate  to  corrupt  blood  or  forfeit 
estate,  except  during  the  life  of  the  offender.  But  unless 
Congress  pass  a  law  expressly  attainting  the  criminal  of 

*  Co.  Litt.  391,  b.  t  Stat.  9  Geo.  I.  ch.  17. 

t  4  Bla.  387.  §  4  Bla.  387. 

||  Ib. ;  Co.  Litt.  391,  b. ;  4  Bla.  386. 


104  CONSTITUTION    OF   THE   UNITED    STATES. 

treason,  there  is  not,  under  the  laws  of  the  United 
States,  any  "attainder."  The  criminal  laws  of  the 
United  States  are  all  embraced  in  specific  statutes,  de- 
fining crimes  and  all  their  penalties.  No  consequential 
penalties  of  this  character  are  known  to  this  law.  And 
if  a  person  is  convicted  and  sentenced  to  death  for 
treason,  there  can  be  no  corruption  of  blood,  nor  for- 
feiture of  estate  except  by  express  terms  of  the  statute. 
The  leading  principles  of  the  constitution  forbid  the 
making  of  laws  which  should  leave  the  penalty  of 
crime  to  be  determined  by  ancient  or  antiquated  com- 
mon law  proceedings  of  English  courts.  Forfeiture  of 
estate,  by  express  terms  of  statute,  may  be  in  the  nature 
of  forfeiture  by  a  bill  of  pains  and  penalties,  or  praemu- 
nire,  but  is  not  forfeiture  by  attainder ;  nor  is  it  such 
forfeiture  as  is  within  the  sense  of  the  constitution, 
which  limits  the  operation  of  attainders  of  treason. 
This  distinction  was  well  known  to  the  framers  of  the 
constitution.  They  thought  it  best  to  guard  against 
the  danger  of  those  constructive  and  consequential 
punishments,  giving  full  power  to  Congress,  in  plain 
terms,  to  prescribe  by  statute  what  punishment  they 
should  select ;  but  in  case  of  resort  to  attainder  of 
treason,  as  one  of  those  punishments,  that  form  of  pun- 
ishment should  not  be  so  construed  as,  ex  vi  termini,  to 
corrupt  blood  nor  forfeit  estate  except  during  the  life 
of  the  person  attainted. 

TECHNICAL  LANGUAGE  TO  BE  CONSTRUED  TECHNICALLY. 

The  language  of  the  constitution  is  peculiar;  it  is 
technical ;  and  it  shows  on  the  face  of  it  an  intention 
to  limit  the  technical  operation  of  attainders,  not  to 
limit  the  scope  or  extent  of  legislative  penalties.  If 


PUNISHMENT   OF   TREASON.  105 

the  authors  of  the  constitution  meant  to  say  that  Con- 
gress should  pass  no  law  punishing  treason  by  attainder, 
or  by  its  consequences,  viz.,  forfeiture  of  estate,  or  cor- 
ruption of  blood,  they  would,  in  plain  terms,  have  said 
so  ;  and  there  would  have  been  an  end  to  the  penalties 
of  attainder,  as  there  was  an  end  to  bills  of  attainder. 
Instead  of  saying,  "  Congress  shall  have  power  to  de- 
clare the  punishment  of  treason,  but  shall  not  impose 
the  penalties  of  attainder  upon  the  offender,"  they 
said,  "  Congress  shall  have  power  to  declare  the  punish- 
ment of  treason,  but  no  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture,  except  during  the 
life  of  the  person  attainted." 

This  phraseology  has  reference  only  to  the  technical 
effect  of  attainder.  The  "  working  of  forfeitures  "  is  a 
phrase  used  by  lawyers  to  show  the  legal  result  or  effect 
which  arises  from  a  certain  state  of  facts.  If  a  traitor 
is  convicted,  judgment  of  death  is  passed  upon  him ; 
by  that  judgment  he  becomes  attainted.  Attainder 
works  forfeitures  and  corruption  of  blood;  forfeitures 
and  corruption  of  blood  are,  in  the  ordinary  course  of 
common  law,  followed  by  certain  results  to  his  rights 
of  property.  But  the  constitution  provides,  if  the 
traitor  is  attainted,  that  attainder  shall  not,  ex  vi  termini, 
and  of  its  own  force,  and  without  statute  to  that  effect, 
"work"  forfeiture  or  corruption  of  blood.  The  con- 
vict may  still  retain  all  those  civil  rights  of  which  he 
has  not  been  deprived  by  the  strict  terms  of  the  statute 
which  shall  declare  the  punishment  of  treason. 

The   punishment  of  treason,  by  the  statute  of  the 

United  States  of  April  30,  1790,  is  death,  and  nothing 

more.     Can  any  case  be  found,  since  the  statute  was 

enacted,  in  which  a  party  convicted  and  adjudged  guilty 

14 


106  CONSTITUTION    OF   THE   UNITED    STATES. 

of  treason  and  sentenced  to  death,  has  been  held  to  be 
"  attainted  "  of  treason,  so  that  the  attainder  has  worked 
forfeiture  of  any  of  his  estate,  real  or  personal  ?  Would 
not  any  lawyer  feel  astonishment  if  a  court  of  the 
United  States,  having  sentenced  a  traitor  to  death 
under  the  law  of  1790,  should  announce  as  a  further 
penalty  the  forfeiture  of  the  real  and  personal  estate 
of  the  offender,  "  worked  "  by  the  attainder  of  felony, 
notwithstanding  no  such  penalty  is  mentioned  in  that 
statute  ? 

If  Congress  should  pass  an  act  punishing  a  traitor  by 
a  fine  of  five  dollars,  and  imprisonment  for  five  years, 
who  would  not  feel  amazed  to  learn  that  by  the  English 
doctrine  of  forfeitures  worked  by  attainders,  by  opera- 
tion of  law,  the  criminal  might  be  stripped  of  property 
worth  thousands  of  dollars,  over  and  above  the  penalty 
prescribed  by  statute  ? 

TRUE  MEANING  OP  ART.   III.  SECT.  III.   CL.  II. 

The  constitution  means  that  if  traitors  shall  be  at- 
tainted, unlimited  forfeitures  and  corruption  of  blood 
shall  not  be  worked  by  attainders.  It  means  to  leave 
untrammelled  the  power  of  Congress  to  cause  traitors 
to  be  attainted  or  otherwise  ;  but  if  attainted  Congress 
must  provide  by  statute  for  the  attainder ;  and  the 
constitution  settles  how  far  that  attainder  shall  operate 
constitutionally ;  and  when  the  legislature  has  awarded 
one  punishment  for  treason,  the  law  shall  not  evoke 
the  doctrine  of  forfeitures  worked  by  attainder,  and 
thus,  by  technical  implication,  add  punishments  not  spe- 
cifically set  down  in  the  penal  statute  itself;  or  if  this 
implication  exist,  the  results  of  the  technical  effect  of 
attainder  shall  not  be  corruption  of  blood,  or  forfeiture, 


PUNISHMENT    OF   TREASON.  107 

except  during  the  life  of  the  offender.  The  third  ar- 
ticle does  not  limit  the  power  of  Congress  to -punish, 
but  it  limits  the  technical  consequences  of  a  special 
kind  of  punishment,  which  may  or  may  not  be  adopted 
in  the  statutes. 

From  the  foregoing  remarks  it  is  obvious  that  no 
person  is  attainted  of  treason,  in  the  technical  sense, 
who  is  convicted  under  the  United  States  act  of  1790. 
There  can  be  no  attainder  of  treason,  within  the  meaning 
of  the  constitution,  unless  there  be,  first,  a  judgment  of 
death,  or  outlawry ;  second,  a  penalty  of  attainder  by 
express  terms  of  the  statute.  A  mere  conviction  of 
treason  and  sentence  of  death,  or  outlawry,  and  forfeit- 
ures of  real  and  personal  estate,  do  not  constitute  an 
attainder  in  form,  in  substance,  nor  in  effect,  when  made 
under  any  of  the  present  statutes  of  the  United  States. 
' 

IF  CONGRESS    MAT  IMPOSE  FINES,  WHY   NOT  FORFEITURES  ? 

No  one  doubts  the  power  of  Congress  to  make  trea- 
son punishable  with  death,  or  by  fines  to  any  amount 
Whatever.  Nor  would  any  reasonable  person  deem  any 
fine  too  large  to  atone  for  the  crime  of  involving  one's 
own  country  in  civil  war.  If  the  constitution  placed 
in  Congress  the  power  to  take  life,  and  to  take  prop- 
erty of  the  offender  in  one  form,  why  should  it  deny 
the  power  to  take  property  in  any  other  form  ?  If  the 
framers  of  the  constitution  were  willing  that  a  traitor 
should  forfeit  his  life,  how  could  they  have  intended 
to  shelter  his  property  ?  Was  property,  in  their  opin- 
ion, more  sacred  than  life  ?  Would  all  the  property 
of  rebels  forfeited  to  the  treasury  of  the  country  repair 
the  injury  of  civil  war  ? 


CONSTITUTION    OF   THE   UNITED    STATES. 


FORFEITURES  NOT   LIMITED   TO  LIFE  ESTATES. 

Could  the  lawyers  who  drafted  the  constitution  have 
intended  to  limit  the  pecuniary  punishment  of  forfeit- 
ure to  a  life  interest  in  personal  estate,  when  every 
lawyer  in  the  convention  must  have  known  than  at 
common  law  there  was  no  such  thing  as  a  life  estate  in 
personal  property  ?  Knowing  this,  did  they  mean  to 
protect  traitors,  under  all  circumstances,  in  the  enjoy- 
ment of  personal  property  ?  If  so,  why  did  they  not 
say  so  ?  If  they  meant  to  prevent  Congress  from  pass- 
ing any  law  that  should  deprive  traitors  of  more  than 
a  life  estate  in  real  estate,  the  result  would  be,  that  the 
criminal  would  lose  only  the  enjoyment  of  his  lands 
for  a  few  days  or  weeks,  from  the  date  of  the  judgment 
to  the  date  of  his  execution,  and  then  his  lands  would 
go  to  his  heirs.  Thus  it  is  evident,  that  if  the  consti- 
tution cuts  off  the  power  of  Congress  to  punish  treason, 
and  limits  it  to  such  forfeitures  as  are  the  consequence 
of  attainder,  and  then  cuts  off  from  attainder  its  penal 
consequences  of  corruption  of  blood  and  forfeiture  of 
estate,  except  during  the  life  of  the  offender,  then 
the  framers  of  that  instrument  have  effectually  pro- 
tected the  personal  and  real  estate  of  traitors,  and  have 
taken  more  care  to  secure  them  from  the  consequences 
of  their  crime  than  any  other  class  of  citizens.  If  so, 
they  have  authorized  far  more  severity  against  many 
other  felons  than  against  them.  If  such  were  the  pur- 
pose of  the  authors  of  the  constitution,  they  would 
have  taken  direct  and  plain  language  to  say  what  they 
meant.  They  would  have  said,  "  Congress  may  punish 
treason,  but  shall  not  deprive  traitors  of  real  or  personal 
property,  except  for  the  time  which  may  elapse  be- 
tween sentence  of  death  and  execution."  Instead 


PUNISHMENT    OF   TREASON.  109 

of  such  a  provision,  they  gave  full  power  to  punish 
treason,  including  fines,  absolute  forfeitures,  death,  and 
attainder,  only  limiting  the  technical  effect  of  the  last- 
mentioned  penalty,  if  that  form  of  punishment  should 
be  adopted ;  and  Congress  has  the  power,  under  the 
constitution,  to  declare  as  the  penalty  for  treason  the 
forfeiture  of  all  the  real  and  personal  estate  of  the 
offender,  and  is  not  limited,  as  has  been  supposed  by 
some,  to  a  forfeiture  of  real  estate  for  life  only. 


110  CONSTITUTION   OF   THE   UNITED   STATES. 

Ol;;V   • 

CHAPTER    VI. 

STATUTES  AGAINST  TREASON.    WHAT  THEY  ARE,  AND  HOW 
THEY  ARE  TO   BE  ADMINISTERED. 

THE  United  States  statute  of  April  30th,  1790, 
provides  that, — 

"  If  any  person  or  persons,  owing  allegiance  to  the  United  States  of 
America,  shall  levy  war  against  them,  or  shall  adhere  to  their  enemies, 
giving  them  aid  and  comfort,  within  the  United  States  or  elsewhere, 
and  shall  be  thereof  convicted,  on  confession  in  open  court,  or  on  the 
testimony  of  two  witnesses  to  the  same  overt  act  of  the  treason  where- 
of he ,  or  they  shall  stand  indicted,  such  person  or  persons  shall  be 
adjudged  guilty  of  treason  against  the  United  States,  and  shall  suffer 
death" 

Concealment  of  knowledge  of  treason  (misprision  of 
treason)  is,  by  the  same  act,  punished  by  fine  not 
exceeding  one  thousand  dollars,  and  imprisonment  not 
exceeding  seven  years.  By  the  statute  of  January 
30th,  1799,  corresponding  with  foreign  governments, 
or  with  any  officer  or  agent  thereof,  with  intent  to  in- 
fluence their  controversies  with  the  United  States,  pr  to 
defeat  the  measures  of  this  government,  is  declared  to 
be  a  high  misdemeanor,  though  not  called  treason,  and 
is  punishable  by  fine  not  exceeding  five  thousand  dol- 
lars, and  imprisonment  during  a  term  not  less  than  six 
months,  nor  exceeding  three  years.  So  the  law  has 
stood  during  this  centurv,  until  the  breaking  out  of 

CP  */    w  <J 

the  present  rebellion. 

The  chief  provisions  of  the  law  passed  at  the  last 
session  of  Congress,  and  approved  July  17th,  1862,  are 
these  :  — 


STATUTES  AGAINST  TREASON.  Ill 

Section  1.  Persons  committing  treason  shall  suffer 
one  of  two  punishments :  1.  Either  death,  and  freedom 
to  his  slaves ;  or,  2.  Imprisonment  not  less  than  five 
years,  fine  not  less  than  ten  thousand  dollars,  and  free- 
dom of  slaves;  the  fine  to  be  collected  out  of  any 
personal  or  real  estate  except  slaves. 

Sect.  2.  Inciting  rebellion,  or  engaging  in  it,  or  aid- 
ing those  who  do  so,  is  punishable  by  imprisonment  not 
more  than  ten  years,  fine  not  more  than  ten  thousand 
dollars,  and  liberation  of  slaves. 

Sect.  3  disqualifies  convicts,  under  the  preceding  sec- 
tions, from  holding  office  under  the  United  States. 

Sect.  4  provides  that  former  laws  against  treason 
shall  not  be  suspended  as  against  any  traitor,  unless  he 
shall  have  been  convicted  under  this  act. 

Sect.  5  makes  it  the  duty  of  the  President  to  cause 
the  seizure  of  all  the  property,  real  and  personal,  of  several 
classes  of  persons,  and  to  apply  the  same  to  the  support 
of  the  army,  namely  :  1.  Rebel  army  and  navy  offi- 
cers ;  2.  Government  officers  of  Confederate  States  in 
their  national  capacity  ;  3.  Confederate  State  officers ; 
4.  United  States  officers  turned  traitor  officers ;  5.  Any 
one  holding  any  office  or  agency,  national,  state,  or 
municipal,  under  the  rebel  government,  provided  per- 
sons enumerated  in  classes  3,  4,  and  5  have  accepted 
office  since  secession  of  the  State,  or  have  taken  oath 
of  allegiance  to  support  the  Confederate  States  ;  6.  Per- 
sons who,  owning  property  in  loyal  States,  in  the  terri- 
tories, or  in  the  District  of  Columbia,  shall  hereafter 
assist,  aid,  or  comfort  such  rebellion.  All  transfers  of 
property  so  owned  shall  be  null,  and  suits  for  it  by  such 
persons  shall  be  barred  by  proving  that  they  are  within 
the  terms  of  this  act 


112  CONSTITUTION    OF    THE   UNITED    STATES. 

Sect.  6.  Any  persons  within  the  United  States,  not 
above  named,  who  are  engaged  in  armed  rebellion,  or 
aiding  and  abetting  it,  who  shall  not,  within  sixty  days 
after  proclamation  by  the  President,  "cease  to  aid, 
countenance,  and  abet  said  rebellion,"  shall  be  liable  to 
have  all  their  property,  personal  and  real,  seized  by  the 
President,  whose  duty  it  shall  be  to  seize  and  use  it,  or 
the  proceeds  thereof.  All  transfers  of  such  property, 
made  more  than  sixty  days  after  the  proclamation,  are 
declared  null. 

Sect.  7.  To  secure  the  condemnation  and  sale  of 
seized  property,  so  as  to  make  it  available,  proceedings 
in,  rem  shall  be  instituted  in  the  name  of  the  United 
States,  in  any  District  Court  thereof,  or  in  any  terri- 
torial court,  or  in  the  United  States  District  Court  for 
the  District  of  Columbia,  within  which  district  or  terri- 
tory the  property,  or  any  part  of  it,  may  be  found,  or 
into  which,  if  movable,  it  may  first  be  brought.  Pro- 
ceedings are  to  conform  to  those  in  admiralty  or  reve- 
nue cases.  Condemnation  shall  be  as  of  enemy's  prop- 
erty, and  it  shall  belong  to  the  United  States;  the 
proceeds  thereof  to  be  paid  into  the  treasury. 

Sect.  8.  Proper  powers  are  given  to  the  courts  to 
carry  the  above  proceedings  into  effect,  and  to  establish 
legal  forms  and  processes  and  modes  of  transferring 
condemned  property. 

Sect.  9.  Slaves  of  rebels,  or  of  those  aiding  them, 
escaping  and  taking  refuge  within  the  lines  of  our  army; 
slaves  captured  from  them ;  slaves  deserted  by  them, 
and  coming  under  the  control  of  the  United  States  gov- 
ernment; slaves  found  in  places  occupied  by  rebel  forces, 
and  afterwards  occupied  by  the  United  States  army,  shall 
be  deemed  captives  of  war,  and  shall  be  forever  free. 

Sect.  10.  No  fugitive  slave  shall  be  returned  to  a 


STATUTES  AGAINST  TREASON.  113 

person  claiming  him,  nor  restrained  of  his  liberty,  except 
for  crime,  or  offence  against  law,  unless  the  claimant 
swears  that  the  person  claiming  the  slave  is  his  lawful 
owner,  has  not  joined  the  rebellion,  nor  given  aid  to 
it.  No  officer  or  soldier  of  the  United  States  shall  sur- 
render fugitive  slaves. 

Seat.  11.  The  President  may  employ,  organize,  and 
use  as  many  persons  of  African  descent  as  he  pleases 
to  suppress  the  rebellion,  and  use  them  as  he  judges 
for  the  public  welfare. 

Sect.  12.  The  President  may  make  provisions  for 
colonizing  such  persons  as  may  choose  to  emigrate,  after 
they  shall  have  been  freed  by  this  act. 

Sect.  13.  The  President  is  authorized  by  proclama- 
tion to  pardon  any  persons  engaged  in  the  rebellion, 
on  such  terms  as  he  deems  expedient. 

Sect.  14.  Courts  of  the  United  States  have  full  pow- 
ers to  institute  proceedings,  make  orders,  &c.,  to  carry 
the  foregoing  measures  into  effect. 

A  resolution,  explanatory  of  the  above  act,  declares 
that  the  statute  punishes  no  act  done  prior  to  its  pas- 
sage ;  and  no  judge  or  member  of  a  State  legislature, 
who  has  not  taken  the  oath  of  allegiance  to  support 
the  constitution  of  the  Confederate  States ;  nor  shall 
any  punishment  or  proceedings  be  so  construed  as  to 
"work  forfeiture  of  the  real  estate  of  the  offender  be- 
yond his  natural  life." 

The  President's  proclamation,  in  accordance  with  the 
above  act,  was  issued  July  25th,  1862.  Thus  all  per- 
sons engaged  in  the  rebellion,  who  come  within  the 
provisions  of  the  sixth  section,  will  be  liable  to  the 
penalties  after  sixty  days  from  July  25th.  This  is  one 
of  the  most  important  penal  acts  ever  passed  by  the 
Congress  of  the  United  States. 
15 


4 

114  CONSTITUTION   OF   THE   UNITED    STATES. 

THE   CONFISCATION  ACT  OF  1862  IS    NOT  A  BILL  OF  ATTAINDER,  NOB 
AN   EX  POST  FACTO  LAW. 

This  act  is  not  a  bill  of  attainder,  because  it  does  not 
punish  the  offender  in  any  instance  with  corruption  of 
blood,  and  it  does  not  declare  him,  by  act  of  legislature, 
guilty  of  treason,  inasmuch  as  the  offender's  guilt  must 
be  duly  proved  and  established  by  judicial  proceedings 
before  he  can  be  sentenced.  It  is  not  an  ex  post  facto 
law,  as  it  declares  no  act  committed  prior  to  the  time 
when  the  law  goes  into  operation  to  be  a  crime,  or  to 
be  punishable  as  such.  It  provides  for  no  attainder  of 
treason,  and  therefore  for  none  of  the  penal  conse- 
quences which  might  otherwise  have  followed  from 
such  attainder. 

The  resolution,  which  is  to  be  taken  as  part  of  the 
act,  or  as  explanatory  of  it,  expressly  provides  that  no 
punishment  or  proceedings  under  said  act  shall  be  so 
construed  as  to  work  a  forfeiture  of  the  real  estate  of 
the  offender  beyond  his  natural  life.  Thus,  to  prevent 
our  courts  from  construing  the  sentence  of  death,  under 
Sect.  1,  as  involving  an  attainder  of  treason,  and  its 
consequences,  Congress  has,  in  express  terms,  provided 
that  no  punishment  or  proceeding  shall  be  so  construed 
as  to  work  forfeiture,  as  above  stated.  Thus  this  statute 
limits  the  constructive  penalties  which  result  from  for- 
feitures worked  by  attainders,  and  perhaps  may  be  so 
construed  as  to  confine  the  punishments  to  those,  and 
those  only,  which  are  prescribed  in  the  plain  terms  of 
the  statute.  And  this  limitation  is  in  accordance 
with  the  constitution,  as  understood  by  the  President, 
although  the  forfeiture  of  rebels'  real  estate  might  have 
been  made  absolute  and  unlimited,  without  exceeding 
the  constitutional  power  of  Congress  to  punish  treason. 


THE   POWER   TO   PUNISH   REBELS.  115 


CHAPTER    VII. 

THE  RIGHT  OF  CONGRESS  TO  DECLARE  THE  PUNISHMENT 
OF  CRIMES  AGAINST  THE  UNITED  STATES  OTHER  THAN 
TREASON. 

THE    NEW    CRIMES  OF  REBELLION  REQUIRE  NEW    PENAL  LAWS. 

SEVERAL  crimes  may  be  committed  not  defined  as 
treason  in  the  constitution,  but  not  less  dangerous  to 
the  public  welfare.  The  prevention  or  punishment  of 
such  offences  is  essential  to  the  safety  of  every  form 
of  government;  and  the  power  of  Congress  to  impose 
penalties  in  such  cases  cannot  be  reasonably  questioned. 
The  rights  guaranteed  in  express  terms  to  private  citi- 
zens cannot  be  maintained,  nor  be  made  secure,  without 
such  penal  legislation ;  and,  accordingly,  Congress  has, 
from  time  to  time,  passed  laws  for  this  purpose.  The 
present  rebellion  has  given  birth  to  a  host  of  crimes 
which  were  not  previously  punishable  by  any  law. 
Among  these  crimes  are  the  following :  Accepting  or 
holding  civil  offices  under  the  Confederate  government ; 
violating  the  oath  of  allegiance  to  the  United  States ; 
taking  an  oath  of  allegiance  to  the  Confederate  States ; 
manufacturing,  passing,  or  circulating  a  new  and  illegal 
currency ;  acknowledging  and  obeying  the  authority 
of  a  seceded  State,  or  of  the  Confederate  States ;  neg- 
lecting or  refusing  to  return  to  allegiance  and  to  lay 
down  arms  after  due  warning ;  attempting  to  negotiate 
treaties  with  foreign  powers  to  intervene  in  our  affairs; 
granting  or  taking  letters  of  marque;  conspiracy 


116  CONSTITUTION    OF   THE   UNITED    STATES. 

against  the  lawful  government;  holding  public  meet- 
ings to  incite  the  people  to  the  commission  of  treason ; 
plotting  treason;  framing  and  passing  ordinances  of 
secession ;  organizing  and  forming  new  governments  * 
within  any  of  the  States,  with  the  intent  that  they 
shall  become  independent  of  the  United  States,  and 
hostile  thereto:  the  making  of  treaties  between  the 
several  States ;  refusal  to  take  the  oath  of  allegiance 
to  the  United  States,  when  tendered  by  proper  author- 
ity ;  resistance  to  civil  process,  or  to  civil  officers  of  the 
United  States,  when  such  resistance  is  not  so  general 
as  to  constitute  war.  Each  of  these  and  many  other 
public  wrongs  may  be  so  committed  as  to  avoid  the 
penalty  of  treason,  because  they  may  not  be  overt  acts 
of  levying  war,  or  of  aiding  and  comforting  the  enemy, 
which  the  offender  must  have  committed  before  he  can 
have  rendered  himself  liable  to  be  punished  for  treason 
as  defined  in  the  constitution.  These  and  other  similar 
offences  are  perpetrated  for  the  purpose  of  overthrow- 
ing government.  Civil  war  must  inevitably  result  from 
them.  They  might  be  deemed  less  heinous  than  open 
rebellion,  if  it  were  not  certain  that  they  are  the  foun- 
tain from  which  the  streams  of  treason  and  civil  war 
must  flow,  sweeping  the  innocent  and  the  guilty  with 
resistless  tide  onward  to  inevitable  destruction. 

ALL  ATTEMPTS  TO  OVERTURN  GOVERNMENT  SHOULD  BE  PUNISHED. 

Of  the  many  atrocious  misdeeds  which  are  pre- 
liminary to  or  contemporaneous  with  treason,  each  and 
all  may  be  and  should  be  punishable  by  law.  It  is  by 
no  means  desirable  that  the  punishment  of  all  of  them 
should  be  by  death,  but  rather  by  that  penalty,  which, 
depriving  the  criminal  of  the  means  of  doing  harnj, 


THE   POWER   TO    PUNISH   REBELS.  J.17 

will  disgrace  him  in  the  community  he  has  dishonored. 
Imprisonment,  fines,  forfeitures,  confiscation,  are  the 
proper  punishments  for  such  hardened  criminals,  be- 
cause imprisonment  is  a  personal  punishment,  and 
fines,  forfeitures,  &c.,  merely  transfer  the  property  of 
the  offender  to  the  public,  as  a  partial  indemnity  for 
the  wrong  he  has  committed. 

When  the  terrible  consequences  of  the  crimes  which 
foment  civil  war  are  considered,  no  penalty  would  seem 
too  severe  to  expiate  them.  But  it  has  been  erro- 
neously suggested  that,  as  the  levying  of  war  —  treason 
— itself  is  not  punishable  by  depriving  traitors  of  more 
than  a  life  estate  in  their  real  estate,  even  though  they 
are  condemned  to  death,  it  could  not  have  been  the 
intention  of  the  framers  of  the  constitution  to  punish 
any  of  the  crimes  which  may  originate  a  civil  war,  by 
penalty  equally  severe  with  that  to  which  they  limited 
Congress,  in  punishing  treason  itself.  A  lower  offence, 
it  is  said,  should  not  be  punished  with  more  severity 
than  a  higher  one.  This  objection  would  be  more 
plausible  if •  the  power  to  punish  treason  were  in  fact 
limited.  But,  as  has  been  shown  in  a  previous  chapter, 
such  is  not  the  fact.* 

ACT    OF  18C2,  SECTION  VI.,  DOES    NOT  PURPORT   TO   PUNISH   TREASON. 

If  the  penalty  of  death  be  not  inflicted  on  the  guilty, 
and  if  he  be  not  accused  of  treason,  no  question  as  to 
the  validity  of  the  statute  could  arise  under  this  clause 
of  the  constitution  limiting  the  effect  of  attainders 
of  treason.  No  objection  could  be  urged  against  its 

: 

*  See  Chap.  V.  page  93. 


118  CONSTITUTION   OF   THE   UNITED    STATES. 

validity  on  the  ground  of  its  forfeiting  or  confiscating 
all  the  property  of  the  offender,  or  of  its  depriving 
him  of  liberty  by  imprisonment,  or  of  its  exiling  him 
from  the  country. 

Section  6  of  the  act  of  1862  does  not  impose  the 
penalty  of  death,  but  it  provides  that  if  rebels  in  anns 
shall  not,  within  sixty  days  after  proclamation  by  the 
President,  cease  to  aid  and  abet  the  rebellion,  and 
return  to  their  allegiance,  they  shall  be  liable  to  have 
all  their  property  seized  and  used  for  the  benefit  of  the 
country. 

Suppose  the  rebels  in  arms  refuse  to  obey  the  procla- 
mation, and  neglect  or  refuse  to  return  to  their  allegiance; 
the  mere  non-performance  of  the  requisition  of  this  act 
is,  not  levying  war,  or  aiding  and  comforting  the  enemy, 
technically  considered,  and  so  not  treason  —  although, 
if  they  go  on  to  perform  overt  acts  in  aid  of  the  rebels, 
those  acts  will  be  treasonable.  Will  it  be  denied  that  the 
rebels  in  arms  ought  to  be  required  by  law  to  return 
to  their  allegiance  and  cease  rebellion?  If  their 
refusal  to  do  so  is  not  technically  treason,  «ought  they 
not  to  be  liable  to  punishment  for  violating  the  law  ? 
Is  any  degree  of  pecuniary  loss  too  severe  for  those 
who  will  continue  at  war  with  their  country  after  warn- 
ing and  proclamation,  if  their  lives  are  not  forfeited  ? 

LEGAL   CONSTRUCTION   OF  THE  ACT  OF   1862. 

What  will  be  the  construction  put  upon  section  6th 
of  the  act  of  1862,  when  taken  in  connection  with  the 
joint  resolution  which  accompanied  it,  is  not  so  certain 
as  it  should  be.  The  language  of  the  last  clause  in 
that  resolution  is, "  Nor  shall  any  punishment  or  pro- 
ceedings, under  said  act,  be  so  construed  as  to  work  a 


THE   POWER   TO   PUNISH  REBELS.  119 

'  forfeiture '  of  the  real  estate  of  the  offender  beyond 
his  natural  life."  There  is  no  forfeiture  in  express 
terms  provided  for  in  any  part  of  the  act.  The  pun- 
ishment of  treason,  in  the  first  section,  is  either  death 
arid  freedom  of  slaves,  or  imprisonment,  fine,  and  free- 
dom of  slaves.  The  judgment  of  death  for  treason  is 
the  only  one  which  could,  even  by  the  common  law, 
have  been  so  construed  as  to  "  work  any  forfeiture." 
It  may  have  been  the  intention  of  Congress  to  limit 
the  constructive  effect  of  such  a  judgment.  But  the 
words  of  the  resolution  are  peculiar ;  they  declare  that 
no  "  proceedings  "  under  said  act  shall  be  so  construed 
as  to  work  a  forfeiture,  &c.  Then  the  question  will  arise 
whether  the  "  proceedings  "  (authorized  by  section  6,  in 
which  the  President  has  the  power  and  duty  to  seize 
and  use  all  the  property  of  rebels  in  arms  who  refuse, 
after  warning,  to  return  to  their  allegiance)  are  such 
that  a  sale  of  such  real  estate,  under  the  provisions  of 
sections  7  and  8,  can  convey  any  thing  more  than  an 
estate  for  the  life  of  the  offender  ?  But  the  crime  pun- 
ished by  section  6  is  not  the  crime  of  treason;  and 
whether  there  be  or  be  not  a  limitation  to  the  power 
of  the  legislature  to  punish  that  crime,  there  is  no  limit 
to  its  power  to  punish  the  crime  described  in  this 
section. 

Forfeiture  and  confiscation  of  real  and  personal 
estates  for  crimes,  when  there  was  and  could  have  been 
no  treason,  were  common  and  familiar  penal  statutes  in 
several  States  or  colonies  when  the  constitution  was 
framed.  Many  of  the  old  tories,  in  the  time  of  the 
revolution,  were  banished,  and  their  real  estate  confis- 
cated, without  having  been  tried  for  or  accused  of 


120  CONSTITUTION   OF   THE   UNITED    STATES. 

treason,  or  having  incurred  any  forfeiture  by  the  laws 
against  treason.  Such  was  the  case  in  South  Carolina 
in  1776.*  In  that  State,  one  set  of  laws  was  in  force 
against  treason,  the  punishment  of  which  was  forfeiture 
worked  ty  attainder.  Another  set  of  laws  were  confisca- 
tion acts  against  tory  refugees  who  had  committed  no 
treason.  These  distinctions  were  familiar  to  those  who 
formed  the  constitution,  and  they  used  language  re- 
lating to  these  subjects  with  technical  precision. 

THE  SEVERITY  OF  DIFFERENT  PUNISHMENTS   COMPARED. 

Forfeiture  and  confiscation  are,  in  the  eye  of  the  law, 
less  severe  punishments  than  death :  they  are  in  effect 
fines,  to  the  extent  to  which  the  criminal  is  capable  of 
paying  them.  It  would  not  seem  to  be  too  severe  a 
punishment  upon  a  person  who  seeks,  with  arms  in  his 
hands,  to  destroy  your  life,  to  steal  or  carry  away  your 
property,  to  subvert  your  government,  that  he  should 
be  deprived  of  his  property  by  confiscation  or  fine  to 
any  amount  he  could  pay.  Therefore,  as  the  provisions 
of  section  6,  which  would  authorize  the  seizure  and 
appropriation  of  rebel  real  estate  to  public  use,  are  not 
within  the  prohibitions  of  Art.  III.  Sect.  3  of  the  con- 
stitution, it  is  much  to  be  regretted  that  the  joint  reso- 
lution of  Congress  should  have  been  so  worded  as  to 
throw  a  doubt  upon  the  construction  of  that  part  of 
the  statute,  if  not  to  paralyze  its  effect  upon  the  only 
class  of  rebel  property  which  they  cannot  put  out  of 
the  reach  of  government,  viz.,  their  real  estate. 


*  See  Willis  v.  Martin,  2  Bay  20.     See  also  Hinzleman  v.  Clarke  and 
Al,  Coxe  N.  J.,  1795. 


THE   POWER   TO    PUNISH   REBELS.  121 

THE  SIXTH  SECTION  OF  THE  CONFISCATION  ACT  OF  1862  IS  NOT 
WITHIN  THE  PROHIBITION  OF  THE  CONSTITUTION,  ARTICLE  III. 
SECTION  III. 

Congress  cannot,  by  giving  a  new  name  to  «acts  of 
treason,  transcend  the  constitutional  limits  in  declaring 
its  punishment.  Nor  can  legislation  change  the  true 
character  of  crimes.  Hence  some  have  supposed  that 
Congress  has  no  right  to  punish  the  most  flagrant  and 
outrageous  acts  of  civil  war  by  penalties  more  severe 
than  those  prescribed,  as  they  say,  for  treason.  Since  a 
subject  must  have  performed  some  overt  act,  which  may 
be  construed  by  courts  into  the  "  levying  of  war,"  or  "  aid- 
ing the  enemy,"  before  he  can  be  convicted  of  treason, 
it  has  been  supposed  that  to  involve  a  great  nation  in 
the  horrors  of  civil  war  can  be  nothing  more,  and  noth- 
ing else,  than  treason.  This  is  a  mistake.  The  consti- 
tution does  not  define  the  meaning  of  the  phrase 
"  levying  war."  Is  it  confined  to  the  true,  and  genuine 
signification  of  the  words,  namely, "  that  to  levy  war  is 
to  raise  or  begin  war  ;  to  take  arms  for  attack  ;"  or  must 
it  be  extended  to  include  the  carrying  on  or  waging 
war,  after  it  has  been  commenced  ?  *  The  crime  com- 
mitted by  a  few  individuals  by  merely  kvying  war,  or 
beginning  without  prosecuting  or  continuing  armed 
resistance  to  government,  although  it  is  treason,  may  be 
immeasurably  less  than  that  of  carrying  on  a  colossal 
rebellion,  involving  millions  in  a  fratricidal  contest. 
Though  treason  is  the  highest  political  crime  known  to 
the  codes  of  law,  yet  wide-spread  and  savage  rebellion 

*  To  levy  war  is  to  raise  or  begin  war ;  to  take  arms  for  attack ;  to 
attack.  —  Webster's  Quarto  Diet. 

To  levy  is,  1.  To  raise,  as  a  siege.  2.  To  raise  or  collect ;  to  gather. 
3.  To  raise,  applied  to  war. — Worcester's  Quarto  Diet. 

16 


122  CONSTITUTION   OF   THE   UNITED    STATES. 

is  a  still  higher  crime  against  society ;  for  it  embraces 
a  cluster  of  atrocious  wrongs,  of  which  the  attack  upon 
government  —  treason  —  is  but  one.  Although  there 
can  be  tto  treason  unless  the  culprit  levies  war,  or  aids 
the  enemy,  yet  it  by  no  means  follows  that  all  acts  of 
carrying  on  a  war  once  levied  are  only  acts  of  treason. 
Treason  is  the  threshold  of  war ;  the  traitor  passes  over 
it  to  new  and  deeper  guilt.  He  ought  to  suffer  punish- 
ment proportioned  to  his  crimes. 

It  must  also  be  remembered,  that  the  constitution 
does  not  indicate  that  fines,  forfeitures,  confiscations, 
outlawry,  or  imprisonment  are  "  severer  penalties  than 
death."  The  law  has  never  so  treated  them.  Nor  is 
there  any  limit  to  the  power  of  Congress  to  punish 
traitors,  as  has  been  shown  in  a  previous  chapter.* 
Who  will  contend  that  the  crime  of  treason  is  in  morals 
more  wicked,  in  its  tendencies  more  dangerous,  or  in 
its  results  more  deadly  than  the  conspiracy  by  which  it 
was  plotted  and  originated  ?  Yet  suppose  the  con- 
spirator is  artful  enough  not  to  commit  any  overt  act 
in  presence  of  two  witnesses ;  he  cannot  be  convicted 
of  treason,  though  he  may  have  been  far  more  guilty 
than  many  thoughtless  persons  who  have  been  put 
forward  to  execute  the  "  overt  acts,"  and  have  thereby 
become  punishable  as  traitors.  Suppose  a  person  com- 
mit homicide  ;  he  may  be  accused  of  assault  and  battery, 
or  assault  with  intent  to  kill,  or  justifiable  homicide, 
or  manslaughter,  or  murder  in  either  degree.  Suppose 
the  constitution  limited  the  punishment  of  wilful  mur- 
der to  the  death  of  the  criminal  and  forfeiture  of  his  real 
and  personal  estate  for  life ;  would  any  person  contend 
that  neither  of  the  other  above-mentioned  crimes  could 

*  See  Chap.  V.  p.  93. 


THE   POWER   TO   PUNISH   REBELS.  123 

t 

be  punished,  unless  the  criminal  were  convicted  of  wil- 
ful murder?  If  he  had  committed  murder,  he  must 
have  committed  all  the  crimes  involved  in  murder. 
He  must  have  made  an  assault  with  intent  to  kill; 
and  he  must  have  committed  unjustifiable  homicide,  or 
manslaughter.  If  the  government  should,  out  of  leni- 
ency, prosecute  and  convict  him  of  manslaughter,  and 
impose  upon  him  a  penalty  of  fine,  or  confiscation  of 
his  real  and  personal  estate,  instead  of  sentence  of 
death,  would  any  one  say  that  the  penalty  imposed  was 
severer  than  death  ?  or  that  murder  was  legislated  into 
any  other  crime  ?  or  that  any  other  crime  was  legis- 
lated into  murder  ?  Many  crimes  of  different  grades 
may  coexist,  and  culminate  in  one  offence.  It  •  is  no 
sign  of  undue  severity  to  prosecute  the  offender  for  one 
less  than  the  highest.  The  same  course  of  crime  may 
violate  many  of  the  duties  the  loyal  citizen  owes  to  his 
country.  To  pass  laws  declaring  the  penalty  for  each 
and  all  of  these  crimes  does  not  transcend  the  true 
scope  of  the  criminal  legislation  of  Congress,  where  an 
offender  has  brought  upon  his  country  the  horrors  of 
civil  war  by  destroying  the  lives  of  those  who  have 
given  him  no  cause  of  offence,  by  violating  the  rights 
of  the  living  and  the  dead,  by  heaping  upon  his  guilty 
act  the  criminality  of  a  thousand  assassins  and  mur- 
derers, and  by  striking  at  the  root  of  the  peace  and 
happiness  of  a  great  nation ;  it  does  not  seem  unduly 
severe  to  take  from  him  his  property  and  his  life.  The 
constitution  does  not  protect  him  from  the  penalty  of 
death ;  and  it  cannot  be  so  interpreted  as  to  protect 


him  against  confiscation  of  his  real  estate. 


124  CONSTITUTION    OF   THE    UNITED    STATES. 

% 

TREASON    AND   CONFISCATION    LAWS    IN    1862.      THEIR    PRACTICAL 
OPERATION. 

To  understand  the  practical  operation  of  the  statutes 
now  in  force  for  the  punishment  of  treason  and  rebel- 
lion, and  for  the  seizure  and  confiscation  of  rebel  prop- 
erty, it  is  necessary  to  observe  the  effect  of  other 
statutes  which  regulate  the  modes  of  procedure  in  the 
United  States  courts.  Section  1  of  the  act  of  1862, 
which,  as  well  as  the  act  of  1790,  prescribes  the  pun- 
ishment of  death  for  treason ;  sectipn  2,  which  imposes 
fines  and  penalties ;  section  3,  which  adds  disqualifica- 
tion for  office ;  and,  in  fact,  all  the  penal  sections  of 
this  statute,  —  entitle  the  accused  to  a  judicial  trial. 
Before  he  can  be  made  liable  to  suffer  any  penalty,  he 
must  have  been  "  pronounced  guilty  of  the  offence 
charged,"  and  he  must  have  suffered  "judgment  and 
sentence  on  conviction."  The  accused  cannot  by  law 
be  subjected  to  a  trial  unless  he  has  previously  been 
indicted  by  a  grand  jury.  He  cannot  be  adjudged 
guilty  unless  upon  a  verdict  of  a  petty  jury,  impanelled 
according  to  law,  and  by  courts  having  jurisdiction  of 
the  person  and  of  the  alleged  offence.  A  brief  exami- 
nation of  the  statutes  regulating  such  proceedings  will 
show  that  treason  and  confiscation  laws  will  not  be 
likely  to  prove  effectual,  unless  they  shall  be  amended, 
or  unless  other  statutes  shall  be  so  modified  as  to  adapt 
them  to  the  present  condition  of  the  country. 

LEGAL  RIGHTS    OP    PERSONS   ACCUSED    OF  TREASON. 

All  judicial  convictions  must  be  in  accordance  with 
the  laws  establishing  the  judiciary  and  regulating  its 
proceedings.  Whenever  a  person  accused  of  crime  is 
held  by  the  government,  not  as  a  belligerent  or  prisoner 


THE    POWER    TO    PUNISH   REBELS.  125 

of  war,  but  merely  as  a  citizen  of  the  United  States, 
then  he  is  amenable  to,  and  must  be  tried  under  and 
by  virtue  of,  standing  laws  ;  and  all  rights  guaranteed  to 
other  citizens  in  his  condition  must  be  conceded  to  him. 

WILL  SECESSIONISTS  INDICT  AND  CONVICT   EACH  OTHER: 

No  person  can  lawfully  be  compelled  to  appear  and 
answer  to  a  charge  for  committing  capital  or  other- 
wise infamous  crimes,  except  those  arising  in  the  army 
and  navy,  when  in  actual  service,  in  time  of  war  or 
public  danger,  until  he  has  been  indicted  by  a  grand 
jury.*  That  grand  jury  is  summoned  by  the  marshal 
from  persons  in  the  district  where  the  crime  was  com- 
mitted. f 

By  the  statute  of  September  24,  17S9,  section  29, 
"  in  all  cases  punishable  with  death,  the  trial  shall  be 
had  in  the  county  where  the  offence  was  committed ; 
or  where  that  cannot  be  done  without  great  inconve- 
nience, twelve  petit  jurors  at  least  shall  be  summoned 
from  thence."  It  has  indeed  been  decided  that  the 
judges  are  not  obliged  to  try  these  cases  in  the  county 
where  the  crime  was  committed,  but  they  are  bound 
to  try  them  within  the  district  in  which  they  were 
perpetrated. -J* 

HOW  THE  JURIES   ARE  SELECTED,  AND  THEIR  POWERS. 

The  juries  are  to  be  designated  by  lot,  or  according 
to  the  mode  of  forming  juries  practised  in  1789,  so  far 
as  practicable  :  the  qualifications  of  jurors  must  be  the 
same  as  those  required  by  the  laws  of  the  State  where 

*  Constitutional  Amendment  V. 

t  United  States  v.  Wilson,  Baldw.  117  ;  United  States  v.  Cornell,  2  Masa. 
95-98 ;  United  States  v.  The  Insurgents,  3  Ball.  518. 


126  CONSTITUTION    OF   THE   UNITED    STATES. 

the  trial  is  held,  in  order  to  qualify  them  to  serve  in 
the  highest  court  of  that  State  ;  and  jurors  shall  be 
returned  from  such  parts  of  the  district,  from  time  to 
time,  as  the  court  shall  direct,  so  as  to  be  most  favor- 
able to  an  impartial  trial.  And  if  so  many  jurors  are 
challenged  as  to  prevent  the  formation  of  a  full  jury, 
for  want  of  numbers,  the  panel  shall  be  completed  from 
the  bystanders. 

STATE   EIGHTS   AND   SECESSION  DOCTRINES  IN  THE   JURY  ROOM. 

The  jury  are  by  law  judges  of  the  law  and  the  fact, 
according  to  the  opinion  of  many  eminent  lawyers 
and  judges.  Whether  this  be  so  or  not,  their  ver- 
dict, Jaeing  upon  the  law  and  the  fact,  in  a  criminal 
case,  they  become  in  effect  judges  of  law  and  fact. 
Suppose  that  the  juclge  presiding  at  the  trial  is  honest 
and  loyal,  and  that  the  jury  is  composed  of  men  who 
believe  that  loyalty  to  the  State  is  paramount  to  loy- 
alty to  the  United  States  ;  or  that  the  States  had,  and 
have,  a  lawful  right  to  secede  from  the  Union.  What- 
ever the  opinions  of  the  judge  presiding  in  the  United 
States  court  might  be  on  these  questions,  he  would  have 
no  power  to  root  out  from  the  jury  their  honest  belief, 
that  obedience  to  the  laws  of  their  own  seceding  State 
is  not,  and  cannot  be,  treason.  The  first  step  towards 
securing  a  verdict  would  be  to  .destroy  the  belief  of 
the  jury  in  these  doctrines  of  State  rights,  paramount 
State  sovereignty,  and  the  right  of  secession.  To  de- 
cide the  issue,  according  to  the  conscientious  judgment 
of  the  jurymen  upon  the  facts  and  the  law,  would  re- 
quire them  to  find  a  verdict  against  the  United  States. 


THE   POWER   TO   PUNISH  REBELS.  127 

SYMPATHY. 

But  this  is  not  the  only  difficulty  in  the  operation 
of  this  statute.  The  grand  jurors  and  the  petit  jury 
are  to  be  drawn  from  those  who  are  neighbors,  and 
possibly  friends,  of  the  traitors.  The  accused  has  the 
further  advantage  of  knowing,  before  the  time  of  trial, 
the  names  of  all  the  jurors,  and  of  all  the  witnesses  to  be 
produced  against  him ;  he  has  the  benefit  of  counsel,  and 
the  process  of  the  United  States  to  compel  the  attend- 
ance of  witnesses  in  his  behalf.*  How  improbable  is  it 
that  any  jury  of  twelve  men  will  be  found  to  take  away 
the  lives  or  estates  of  their  associates,  when  some  of  the 
jurymen  themselves,  or  their  friends  and  relatives  or 
debtors,  are  involved  in  the  same  offence  !  Could  any 
judge  reasonably  expect  a  jury  of  horse  thieves  to  con- 
vict one  of  their  own  number,  when  either  of  the  jury- 
men might  be  the  next  man  required  to  take  his  turn 
in  the  criminal  box  ?  Under  the  present  state  of  the 
law,  it  is  not  probable  that  there  will  ever  be  a  convic- 
tion, even  if  laws  against  treason,  and  those  which  con- 
fiscate property,  were  not  unpopular  and  odious  in  a 
community  against  whom  they  are  enacted.  When  an 
association  of  traitors  and  conspirators  can  be  found  to 
convict  each  other,  then  these  statutes  w7 ill  punish  trea- 
son, but  not  sooner. 

LATTS   ABE    MOST   EFFECTIVE    WHICH    REQUIRE    NO    REBEL  TO    AD- 
MINISTER   THEM. 

Those  sections  of  the  act  of  1862,  empowering  gov- 
ernment to  seize  rebel  property,  real,  personal,  and 
mixed,  and  to  apply  it  to  the  use  of  the  army,  to  secure 
the  condemnation  and  sale  of  seized  property,  so  as  to 

*  Statute  of  April  30,  1790,  Sect.  29. 


128  CONSTITUTION    OF   THE   UNITED    STATES. 

make  it  available,  and  to  authorize  proceedings  in  rem, 
conformably  to  proceedings  in  admiralty  or  revenue 
cases,  are  of  a  different  and  far  more  effective  char- 
acter. Those  clauses  in  the  act  which  allow  of  the 
employment  in  the  service  of  the  United  States  of 
colored  persons,  so  far  as  they  may  be  serviceable,  and 
the  freeing  of  the  slaves  of  rebels,  whether  captured, 
seized,  fugitive,  abandoned,  or  found  within  the  lines 
of  the  army,  may  be  of  practical  efficacy,  because  these 
measures  do  not  require  the  aid  of  any  secession  jury 
to  carry  them  into  effect. 

STATUTES  OP  LIMITATION  WILL  PROTECT  TBAITOES. 

The  statutes  limiting  the  time  during  which  rebels 
and  traitors  shall  be  liable  to  indictment  ought  also  to  be 
considered.  By  the  act  of  1790,  no  person  can  be  pun- 
ished unless  indicted  for  treason  within  three  years  after 
the  treason  \vas  committed,  if  punishable  capitally ;  nor 
unless  indicted  within  two  years  from  the  time  of  com- 
mitting any  offence  punishable  with  fine  or  forfeiture. 
Thus,  by  the  provisions  of  these  laws,  if  the  war  should 
last  two  years,  or  if  it  should  require  two  or  three  years 
after  the  war  shall  have  been  ended  to  reestablish  reg- 
ular proceedings  in  courts,  all  the  criminals  in  the  se- 
ceded States  will  escape  by  the  operation  of  the  stat- 
utes of  limitations.  It  is  true,  that  if  traitors  flee  from 
justice  these  limitations  will  not  protect  them ;  but  this 
exception  will  apply  to  few  individuals,  and  those  who 
flee  will  not  be  likely  to  be  caught.  Unless  these  stat- 
utes are  modified,  those  who  have  caused  and  main- 
tained the  rebellion  will  escape  from  punishment. 


SLAVERY.  129 


CHAPTER    VIII. 

INTERFERENCE    OF    GOVERNMENT    WITH    THE    DOMESTIC 
AFFAIRS    OF  THE    STATES. 

PARTY   PLATFORMS  CANNOT  ALTER  THE  CONSTITUTION. 

POLITICAL  parties,  in  times  of  peace,  have  often  de- 
clared that  they  do  not  intend  to  interfere  with  slavery 
in  the  States.  President  Buchanan  denied  that  govern- 
ment had  any  power  to  coerce  the  seceded  States  into 
submission  to  the  laws  of  the  country.  When  Presi- 
dent Lincoln  catled  into  service  the  army  and  navy, 
he  announced  that  it  was  not  his  purpose  to  interfere 
with  the  rights  of  loyal  citizens,  nor  with  their  domes- 
tic affairs.  Those  who  have  involved  this  country  in 
bloody  war,  all  sympathizers  in  their  treason,  and»  others 
who  oppose  the  present  administration,  unite  in  deny- 
ing the  right  of  the  President  or  of  Congress  to  inter- 
fere with  slavery,  even  if  such  interference  is  the  only 
means  by  which  the  Union  can  be  saved  from  destruc- 
tion. No  constitutional  power  can  be  obliterated  by 
any  denial  or  abandonment  thereof,  by  individuals,  by 
political  parties,  or  by  Congress. 

The  war  power  of  the  President  to  emancipate  ene- 
my's slaves  has  been  the  subject  of  a  preceding  chapter. 
Congress  has  power  to  pass  laws  necessary  and  proper 
to  provide  for  the  defence  of  the  country  in  time  of  war, 
by  appropriating  private  property  to  public  use,  with 
just  compensation  therefor,  as  shown  in  Chapter  I.; 
also  laws  enforcing  emancipation,  confiscation,  and  all 
other  belligerent  rights,  as  shown  in  Chapter  II. ;  and 
it  is  the  sole  judge  as  to  what  legislation,  to  effect 
these  objects,  the  public  welfare  and  defence  require; 
17 


130  CONSTITUTION    OF   THE   UNITED   STATES. 

it  may  enact  laws  abolishing  slavery,  whenever  slavery, 
ceasing  to  be  merely  a  private  and  domestic  relation, 
becomes  a  matter  of  national  concern,  and  the  public 
welfare  and  defence  cannot  be  provided  for  and  secured 
without  interfering  with  slaves.  Laws  passed  for  that 
purpose,  in  good  faith,  against  belligerent  subjects,  not 
being  within  any  express  prohibition  of  the  constitu- 
tion, cannot  lawfully  be  declared  void  by  any  depart- 
ment of  government.  Reasons  and  authority  for  these 
propositions  have  been  stated  in  previous  chapters. 


DOMESTIC   INSTITUTIONS. 


Among  the  errors  relating  to  slavery  which  have 
found  their  way  into  the  public  mind,  —  errors  traceable 
directly  to  a  class  of  politicians  who  are  now  in  open 
rebellion,  —  the  most  important  is,  that  Congress  has  no 
right  to  interfere  in  any  way  with  slaver?/.  Their  assump- 
tion is,  that  the  States  in  which  slaves  are  held  are 
alone  competent  to  pass  any  law  relating  to  an  institu- 
tion which  belongs  exclusively  to  the  domestic  affairs 
of  the  States,  and  in  which  Congress  has  no  right  to 
interfere  in  any  way  whatever. 

From  a  preceding  chapter,  (see  page  17,)  it  will  be  seen, 
that  if  slaves  are  property,  property  can  be  interfered  with 
under  the  constitution  ;  if  slavery  is  a  domestic  institution, 
as  Mormonism  or  apprenticeship  is,  each  of  them  can  law- 
fully be  interfered  with  and  annulled.  But  slavery  has 
a  double  aspect.  So  long  as  it  remains  in  truth  "  domes- 
tic? that  is  to  say,  according  to  Webster's  Dictionary, 
"pertaining  to  house  or  home"  so  long  government  cannot 
be  affected  by  it,  and  have  no  ground  for  interfering 
with  it ;  when,  on  the  contrary,  it  no  longer  pertains 
only  to  house  and  home,  but  enters  into  vital  questions 


SLAVERY.  131 

of  war,  aid  and  comfort  to  public  enemies,  or  any  of 
the  national  interests  involved  in  a  gigantic  rebellion ; 
when  slavery,  rising  above  its  comparative  insignifi- 
cance as  a  household  affair,  becomes  a  vast,  an  over- 
whelming power  which  is  used  by  traitors  to  overthrow 
the  government,  and  may  be  used  by  government  to 
overthrow  traitors,  it  then  ceases  to  be  merely  domestic ; 
it  becomes  a  belligerent  power,  acting  against  the  "  public 
welfare  and  common  defence."  No  institution  con- 
tinues to  be  simply  "  domestic  "  after  it  has  become  the 
effective  means  of  aiding  and  supporting  a  public 
enemy. 

When  an  "institution"  compels  three  millions  of 
subjects  to  become  belligerent  traitors,  because  they 
are  slaves  of  disloyal  masters,  slavery  becomes  an  affair 
which  is  of  the  utmost  public  and  national  concern.  But 
the  constitution  not  only  empmvers,  but,  under  certain 
contingencies,  requires  slavery  in  the  States  to  be  inter- 
fered with.  No  one  who  will  refer  to  the  sections  of 
that  instrument  here  cited,  will  probably  venture  to 
deny  the  power  of  Congress,  in  one  mode  or  another, 
to  interfere  for  or  against  the  institution  of  slavery. 

CONGRESS   MAY    PASS    LAWS  INTERFERING  FOR    THE   PRESERVATION 
AND  PROTECTION  OF  SLAVERY  IN  THE    STATES. 

Art.  IV.  Sect.  2,  required  that  fugitive  slaves  should  be 
delivered  tip,  and  the  fugitive  slave  laws  were  passed  to 
carry  this  clause  into  effect. 

Art.  I.  Sect.  9,  required  that  the  foreign  slave  trade 
should  not  be  interfered  with  prior  to  1808,  but  allowed 
an  importation  tax  to  be  levied  on  each  slave,  not  ex- 
ceeding ten  dollars  per  head. 

Art.  V.  provided  that  no  amendment  of  the  constitu- 


132  CONSTITUTION   OF  THE  UNITSD    STATES. 

tion  should  be  made,  prior  to  1808,  affecting  the  pre- 
ceding clause. 

Art.  I.  Sect.  2  provides  that  three  fifths  of  all  slaves 
shall  be  included  in  representative  numbers. 

CONGRESS   MAY    INTERFERE  AGAINST    SLAVERY    IN   THE    STATES 

Art.  I.  Sect  8.  Congress  has  power  to  regulate 
commerce  with  foreign  nations,  and  among  the  several 
States,  and  with  the  Indian  tribes.  Under  this  clause 
Congress  can  in  effect  prohibit  the  inter-state  slave  trade, 
and  so  pass  laws  diminishing  or  destroying  the  value 
of  slaves  in  the  border  States,  and  practically  abolish 
slavery  in  those  States. 

CONGRESS   MAY  INTERFERE  TTITH   SLAVERY  BY  CALLING  UPON  THE 
SLAVES,  AS  SUBJECTS,   TO   ENTER  MILITARY  SERVICE. 

Art  I.  Sect  8.  Congress  has  the  power  to  declare 
war  and  make  rules  for  the  government  of  land  and 
naval  forces,  and  under  this  power  to  decide  who  shall 
constitute  the  militia  of  tJte  United  States,  and  to  enrol  and 
compel  into  the  service  of  the  United  States  all  the 
slaves,  as  well  as  their  masters,  and  thus  to  interfere 
with  slavery  in  the  States. 

CONGRESS   MAY  INTERFERE  WITH  SLAVERY  IN  THE  STATES  BY  CUT- 
TING   OFF  THE  SUPPLY  OF   SLAVES   TO   SUCH    STATES. 

The  law  now  prohibiting  the  importation  of  slaves, 
and  making  slave  trading  piracy,  is  an  interference  with 
slavery,  by  preventing  their  introduction  info  the 
slave  States.  So  also  is  the  treaty  with  England  to 
suppress  the  slave  trade,  and  to  keep  an  armed  naval 
force  on  the  coast  of  Africa. 

In  case  of  servile  insurrection  against  th     laws  and 


SLAVERY.  133 

authority  of  the  United  States,  the  government  are 
bound  to  interfere  with  slavery,  as  much  as  in  an  insurrec- 
tion of  their  masters,  which  may  also  require  a  similar 
interference.  The  President,  with  the  advice  and  con- 
sent of  the  Senate,  has  the  power  to  make  treaties ; 
and,  under  the  treaty-making  power,  slavery  can  be 
and  has  been  interfered  with.  In  the  last  war  with 
Great  Britain,  a  treaty  was  made  to  evacuate  all  the 
forts  and  places  in  the  United  States  without  carrying 
away  any  of  the  slaves  who  had  gone  over  to  them  in 
the  States.  Congress  then  interfered  to  sustain  the 
institution  of  slavery,  for  it  was  only  by  sustaining 
slavery  that  this  government  could  claim  indemnity  for 
slaves  as  property.  .  The  treaty-making  poiver  may  abolish 
slavery  in  the  whole  country,  as,  by  Art.  VI.,  the  con- 
stitution, the  laws,  and  all  treaties  made  or  which  shall 
be  made  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land.  A  clause  in  any 
treaty  abolishing  slavery  would,  ipso  facto,  become  the 
supreme  law  of  the  land,  and  there  is  no  power  what- 
ever that  could  interfere  with  or  prevent  its  operation. 
By  the  treaty-making  power,  any  part  of  the  country 
burdened  with  slavery,  and  wrested  from  us  by  con- 
quest, could  be  ceded  to  a  foreign  nation  who  do  not 
tolerate  slavery,  and  without  claim  of  indemnity.  The 
principle  is  well  established  that  "the  release  of  a 
territory  from  the  dominion  and  sovereignty  of  the 
country,  if  that  cession  be  the  result  of  coercion  or 
conquest,  does  not  impose  any  obligation  upon  the 
government  to  indemnify  those  who  may  suffer  loss  of 
property  by  the  cession."  * 

*  1  Kent  Com.  178. 


134  CONSTITUTION   OF  THE  UNITED   STATES. 

The  State  of  New  York  had  granted  to  her  own  citi- 
zens man}7  titles  to  real  estate  lying  in  that  part  of  her 
territory  now  called  Vermont.  Vermont  separated 
itself  from  New  York,  and  declared  itself  an  inde- 
pendent State.  It  maintained  its  claims  to  such  an 
extent,  that  New  York,  by  act  of  July  14,  1789,  was 
enforced  to  empower  commissioners  to  assent  to  its 
independence ;  but  refused  to  compensate  persons 
claiming  lands  under  grant  from  New  York,  though 
they  were  deprived  of  them  by  Vermont.  The  ground 
taken  by  the  legislature  was,  that  the  government  was 
not  required  to  assume  the  burden  of  losses  produced  by 
con  quest- or  by  the  violent  dismemberment  of  the  State. 

Supposing  England  and  France  should,  by  armed  in- 
tervention, compel  the  dismemberment  of  Ithe  United 
States,  and  the  cession  of  the  slave  States  to  them  as 
conquered  territory;  and  that  the  laws  of  the  con- 
querors allowed  no  slaveholding.  Could  any  of  the 
citizens  of  slave  States,  who  might  reside  in  the  free 
States,  having  remained  loyal,  but  having  lost  their 
slaves,  make  just  legal  claim  for  indemnity  upon  the 
government  ?  Certainly  not. 

Other  instances  may  be  cited  in  which  Congress 
has  the  power  and  duty  of  interference  in  the  local 
and  domestic  concerns  of  States,  other  than  those 
relating  to  slavery.*  Chief  Justice  Taney  says, — 

"  Moreover,  the  constitution  of  the  United  States,  as  far  as  it  has 
provided  for  an  emergency  of  this  kind,  and  authorized  the  general 
government  to  interfere  in  the  domestic  concerns  of  a  State,  has 
treated  the  subject  as  political  in  its  nature,  and  placed  the  power 
in  the  hands  of  that  department.  Art.  IV.  Sect.  4  of  the  constitution 
of  the  United  States  provides  that  the  United  States  shall  guarantee  to 

*  Luther  v.  Borden,  1  How.  42. 


SLAVERY.  155 

every  State  in  the  Union  a  republican  form  of  government,  and  shall  pro- 
tect each  of  them  against  invasion,  and,  on  the  application  of  the  legisla- 
ture, or  of  the  executive  when  the  legislature  cannot  be  convened,  against 
domestic  violence.  Under  this  article  of  the  constitution  it  rests  with 
Congress  to  decide  what  government  is  the  established  one  in  a  State. 
For,  as  the  United  States  guarantees  to  each  State  a  republican  gov- 
ernment, Congress  must  necessarily  decide  what  government  is  estab- 
lished, before  it  can  determine  whether  it  is  republican  or  not.  And 
when  senators  and  representatives  of  a  State  are  admitted  into  the  coun- 
cils of  the  Union,  the  authority  of  the  government  under  which  they  are 
appointed,  as  well  as  its  republican  character,  is  recognized  by  the 
proper  constitutional  authority,  and  its  decision  is  binding  upon  every 
other  department  of  the  government,  and  could  not  be  questioned  in 
a  judicial  tribunal.  So,  too,  as  relates  to  the  clause  in  the  above-men- 
tioned article  of  the  constitution,  providing  for  cases  of  domestic 
violence.  It  rested  with  Congress,  too,  to  determine  the  means  proper 
to  be  adopted  to  fulfil  this  guaranty." 

Suppose,  then,  that  for  the  purpose  of  securing  "domes- 
tic tranquillity  "  and  to  suppress  domestic  violence,  Congress 
should  determine  that  emancipation  of  the  slaves  was  a 
necessary  and  proper  means,  it  would  be  the  duty  of  Con- 
gress to  adopt  those  means,  and  thus  to  interfere  with 
slavery.*  If  a  civil  war  should  arise  in  a  single  State 
between  the  citizens  thereof,  it  is  the  duty  of  Congress 
to  cause  immediate  interference  in  the  domestic  and  local 
affairs  of  that  State,  and  to  put  an  end  to  the  war ; 
and  this  interference  may  be  by  force  of  arms  and  by 
force  of  laws;  and  the  fact  that  the  cause  of  quarrel  is 
domestic  and  private,  whether  it  be  in  relation  to  a  pro- 
posed change  in  the  form  of  government,  as  in  Dorr's 
rebellion,*  or  a  rebellion  growing  out  of  any  other 
domestic  matter,  the  constitution  authorizes  and 
requires  interference  by  the  general  government. 
Hence  it  is  obvious  that  if  slaves  be  considered  prop- 

*  See  Luther  v.  Borden,  7  How. 


136  CONSTITUTION    OF   THE   UNITED    STATES. 

erty,  and  if  the  regulation  of  slavery  in  the  States  be 
deemed  in  some  aspects  one  of  the  domestic  affairs  of 
the  States  where  it  is  tolerated,  yet  these  facts  consti- 
tute no  reason  why  such  property  may  not  be  inter- 
fered with,  and  slavery  dealt  with  by  government 
according  to  the  emergencies  of  the  time,  whenever 
slavery  assumes  a  new  aspect,  and  rises  from  its  private 
and  domestic  character  to  become  a  matter  of  national 
concern,  and  imperils  the  safety  and  preservation  of 
the  whole  country.  We  are  not  to  take  our  opinions 
as  to  the  extent  or  limit  of  the  powers  contained  in  the 
constitution  from  partisans,  or  political  parties,  nor  even 
from  the  dicta  of  political  judges.  We  should  examine 
that  instrument  in  the  light  of  history  and  of  reason ; 
but  when  the  language  is  plain  and  clear,  we  need  no 
historical  researches  to  enable  us  to  comprehend  its 
meaning.  When  the  interpretation  depends  upon  tech- 
nical law,  then  the  contemporary  law  writers  must  be 
consulted.  The  question  -as  to  the  meaning  of  the  con- 
stitution depends  upon  what  the  people,  the  plain 
people  who  adopted  it,  intended  and  meant  at  the 
time  of  its  adoption. 

AUTHORITATIVE  CONSTRUCTION  OF  THE   MEANING    OF    THE    CON- 
STITUTION. 

The  conclusive  authority  on  its  interpretation  is  the 
document  itself.  When  questions  have  arisen  under 
that  instrument,  upon  which  the  Supreme  Court  have 
decided,  and  one  which  they  had  a  right  to  decide, 
their  opinion  is,  for  the  time  being,  the  supreme  au- 
thority, and  remains  so  until  their  views  are  changed 
and  new  ones  announced ;  and  as  often  as  the  Supreme 
Court  change  their  judgments,  so  often  the  authoritative 


SLAVERY.  137 

interpretation  of  the  constitution  changes.  The  Su- 
preme Court  have  the  right  to  alter  their  opinions  every 
time  the  same  question  is  decided  by  them ;  and  as 
new  judges  must  take  the  place  of  those  whose  offices 
are  vacated  by  death,  resignation,  or  impeachment,  it  is 
not  unlikely  that  opinions  of  the  majority  of  the  court 
may,  upon  constitutional  as  well  as  upon  other  questions, 
be  sometimes  on  one  side  and  sometimes  on  the  other. 

Upon  political  discussions,  such  as  were  involved  in 
the  Dred  Scott  case,  the  judges  are  usually  at  variance 
with  each  other;  and  the  view  >of  the  majority  will 
prevail  until  the  majority  is  shifted.  The  judges  are 
not  legally  bound  to  adhere  to  then*  own  opinions, 
although  litigants  in  their  courts  are.  Whenever  the 
majority  of  the  court  has  reason  to  overrule  a  former 
decision,  they  not  only  have  the  right,  but  it  is  their 
duty,  to  do  so. 

The  opinions  of  the  framers  of  the  constitution  are 
not  authority,  but  are  resorted  to  for  a  more  perfect 
understanding  of  the  meaning  they  intended  to  convey 
by  the  words  they  used ;  but  after  all,  the  words  should 
speak  for  themselves ;  for  it  was  the  language  in  which 
that  instrument  was  worded  that  was  before  the  people 
for  discussion  and  adoption.  We  must  therefore  go 
back  to  that  original  source  of  our  supreme  law,  and 
regard  as  of  no  considerable  authority  the  platforms 
of  political  parties  who  have  attempted  to  import  into 
the  constitution  powers  not  authorized  by  fair  interpre- 
tation of  its  meaning,  or-  to  deny  the  existence  of 
those  powers  which  are  essential  to  the  perpetuity  of 
the  government. 

A  political  party  may  well  waive  a  legal  constitu- 
tional right,  as  matter  of  equity,  comity,  or  public  pol- 
18 


138  CONSTITUTION   OF  TELE  UNITED   STATES. 

icy ;  and  this  waiver  may  take  the  form  of  a  denial 
of  the  existence  of  the  power  thus  waived.  In  this 
manner  Mr.  Douglas  not  merely  waived,  but  denied, 
the  power  of  Congress  to  interfere  with  slavery  in  the 
territories  ;  and  in  the  same  way  members  of  the  Re- 
publican party  have  disclaimed  the  right,  in  time  of 
peace,  to  interfere  with  slavery  in  the  States  ;  but  such 
disclaimers,  made  for  reasons  of  state  policy,  are  not 
to  be  regarded  as  enlarging  or  diminishing  the  rights 
or  duties  devolved  on  the  departments  of  govern- 
ment, by  a  fair  and  liberal  interpretation  of  all  the  pro- 
visions of  the  constitution. 

Rising  above  the  political  platforms,  the  claims  and 
disclaimers  of  Federalists,  Democrats,  Whigs,  Republi- 
cans, and  all  other  parties,  and  looking  upon  the  con- 
stitution as  designed  to  give  the  government  made  by 
the  people,  for  the  people,  the  powers  necessary  to  its 
own  preservation,  and  to  the  enforcement  of  its  laws, 
it  is  not  possible  justly  to  deny  the  right  of  govern- 
ment to  interfere  with  slavery,  Mormonism,  or  any 
other  institution,  condition,  or  social  status  into  which 
the  subjects  of  the  United  States  can  enter,  whenever 
such  interference  becomes  essential  as  a  means  of 
"  public  welfare  or  common  defence  in  time  of  war."  * 

*  In  several  preceding  chapters  other  branches  of  this  subject  have  been 
discussed. 


PAOB 

INTRODUCTION 3 

THE  CONSTITUTION  —  purpose  for  which  it  was  founded 9 

"                  how  violated 3 

"                   liberal  and  strict  constructionists 10 

"                   powers  we  should  expect  to  find  in  it 12 

"  contains  powers  to  make  laws  for  peace  and  laws 

for  war 13 

"                   result,  if  it  denies  the  power  to  save  the  Union.  13 

"                   some  leading  questions  under  it  stated 15 

"                   authoritative  construction  of. 136 

WAR  —  distinction  between  the  objects  and  the  means  of 9 

SLAVERY  —  its  unexpected  growth 4 

"          the  "privileged  class" 4 

"          abolished  by  European  governments 5 

"          in  1862,  not  slavery  in  1788 6 

"          are  slaveholders  arbiters  of  peace  and  war  ? 7 

."          though  hated,  why  it  was  tolerated 8 

'•         recognition  of,  not  inconsistent  with  the  perpetuity  of  the 

republic 9 

"          considered  as  belonging  to  the  domestic  affairs  of  States ; 

can  government  interfere  with  it  ? 129 

"          constitutional  rights  over,  not  aifected  by  party  platforms. .  129 

"          domestic  institutions •  130 

"          may  be  interfered  with  by  Congress,  for  its  protection 131 

"          Congress  may  interfere  against  it 132 

"          may  be  interfered  with  by  operation  of  militia  laws 132 

"          may  be  interfered  with  by  laws  regulating  commerce  be- 
tween the  States 132 

44         by  the  power  to  make  treaties 133 

"          by  the  power  to  suppress  insurrection 135 

M         right  to  deal  with  it  not  to  be  sought  in  party  platforms . . .  137 

(139) 


140  INDEX, 

SLAVERY  —  maybe  interfered  with  (so  far  as  taking  away  slaves  may 
be  said  to  interfere  with  it)  under  the  power  to  appro- 
priate private  property  to  public  use,  as  shown  in 
Chap.  I.  p 17 

"  also  by  the  exercise  of  the  war  powers  of  Congress,  as 

shown  in  Chap.  II.  p 34 

"  also  by  the  war  power  of  the  President,  as  shown  in  Chap. 

III.  p , 66 

"         also  by  the  power  to  punish  treason,  as  shown  in  Chap.  V.  p.     93 

"          also  by  the  power  to  punish  rebels,  as  shown  in  Chap.  VII.  p.  1 15 


CHAPTER    I. 

The  constitutional  right  of  the  government  to  appropriate  private  prop- 
erty to  public  use,  either  in  time  of  peace  or  in  time  of  war 17 

The  right  is  founded  in  reason 17 

Indemnity  is  required 18 

"  Public  use,"  what  it  is 19 

All  kinds  of  property,  including  slaves,  may  be  so  appropriated  ,. 20 

The  United  States  may  require  all  subjects  to  do  military  duty 22 

Will  slaveholders  be  entitled  to  indemnity  if  their  slaves  are  used  for 

military  purposes? 23 

Indemnity  to  Mormons 24 

Effect  of  naturalization  and  militia  laws  on  the  question  of  indemnity 

to  slave  masters 24 

Does  the  war  power  of  seizure  supersede  the  civil  power  of  Congress 

to  appropriate  private  property  to  public  use  ? 26 

References  to  the  constitution,  showing  the  war  powers  of  Congress. . .  27 
Slave  property  subject  to  the  same  liability  as  other  property  to  be  ap- 
propriated for  war  purposes 28 

Importance  and  danger  of  this  power 29 

Powers  of  the  President  not  in  conflict  with  those  of  Congress 29 

Congress  has  power  under  the  constitution  to  abolish  slavery 30 


CHAPTER   II. 

War  powers  of  Congress 34 

Rules  of  interpretation 34 

Are  the  United  States  at  war  ? 38 

Declaration  of  war  not  necessary  on  the  part  of  the  government  to  give 

it  full  belligerent  powers 38 


INDEX.  141 

Has  government  full  war  powers  against  rebel  citizens  ? 40 

Is  "  suppressing  rebellion"  by  arms  making  war  on  the  citizens  of  the 

United  States,  in  the  sense  of  the  constitution  ? 42 

Rebels  may  be  treated  as  belligerents  and  subjects 44 

The  law  of  nations  is  above  the  constitution 46 

International  belligerent  rights  are  determined  by  the  law  of  nations. . .  47 

Belligerent  right  of  confiscation  of  personal  estate 48 

Prize  courts 48 

Title  by  capture 48 

Constitutional  guarantees  of  civil  rights  to  citizens  in  time  of  peace  not 

applicable  thereto  in  time  of  war 49 

True  application  of  these  constitutional  guarantees 50 

Whether  belligerents  shall  be  allowed  civil  rights  under  the  constitu- 
tion depends  upon  the  policy  of  the  government 51 

The  constitution  allows  confiscation 52 

Military  government  under  martial  law 54 

Civil  rights  changed  by  martial  law. 56 

A  severe  rule  of  belligerent  law 57 

Civil  rights  of  loyal  citizens  in  loyal  districts  are  modified  by  the  exist- 
ence of  war. 59 

Belligerent  right  to  confiscate  enemy's  real  estate 61 


CHAPTER   III. 

War  power  of  the  President  to  emancipate  slaves 66 

Why  the  power  exists 66 

The  President  the  sole  judge  how  and  when  to  use  it 67 

Powers  of  the  President  not  inconsistent  with  powers  of  Congress  to 

emancipate  slaves 68 

Is  liberation  of  enemy's  slaves  a  belligerent  right  ? 68 

The  law  of  nations  sanctions  emancipation  of  enemy's  slaves 69 

Authority  and  usage  confirm  the  right 74 

How  far  the  government  of  the  United  States,  under  former  adminis- 
trations, h#ve  sanctioned  the  belligerent  right  of  emancipating 

slaves  of  loyal  and  of  disloyal  citizens 74 

War  powers  of  the  President  —  in  general 82 


CHAPTER   IV. 

BILLS  OF  ATTAINDER 84 

Bills  of  attainder  in  England 84 


142  INDEX. 

Punishment  by  attainder 84 

Attainders  prohibited  as  inconsistent  -with  constitutional  liberty 85 

Bills  of  attainder  abolished 86 

What  is  a  bill  of  attainder 86 

Bills  of  pains  and  penalties 87 

Ex  post  facto  laws  prohibited  —  bills  of  pains  and  penalties  as  well  as 

attainders,  unconstitutional 88 

Attainders  in  the  colonies  and  States- 89 

Bills  of  attainder,  how  recognized 91 


CHAPTER  V. 

TREASON 93 

Right  of  Congress  to  declare  by  statute  the  punishment  of  treason,  and 

its  constitutional  limitations 93 

Ancient  English  doctrine  of  constructive  treason 93 

Power  of  Congress  to  define  and  punish  treason  limited 94 

Attainder  and  ex  post  facto  laws 95 

Treason  defined  by  statute 96 

Congress  have  unlimited  power  to  declare  the  punishment  of  treason  . .  97 

Consequences  of  attainder 98 

Corruption  of  blood 99 

Savage  cruelty  of  English  law 99 

Forfeitures 100 

Characteristics  of  attainders  of  treason 103 

Technical  language,  how  construed ....... 104 

True  meaning  of  constitution,  Art.  III.  Sect.  3,  Cl.  2 106 

If  Congress  can  impose  fines,  why  not  forfeitures  ? ' 107 

Forfeitures  for  treason  not  limited  to  life  estates 108 


CHAPTER   VI. 

Treason  —  statutes  against  it  —  how  administered .* 110 

Confiscation  act  of  1862  not  a  bill  of  attainder,  not  an  ex  post  facto 

law..  .  114 


HAPTER    VII. 

Ths  right  of  Congress  to  declare  the  punishment  of  crimes  against  the 

United  States  other  than  treason 1 15 


INDEX.  143 

New  crimes  require  new  penal  laws 115 

Confiscation  act  of  1862 Ill 

All  attempts  to  overturn  government  should  be  punished 116 

Act  of  1862,  Sect.  6,  does  not  purport  to  punish  treason  ,\ 117 

Legal  construction  of  the  act  of  1862 „ . .  118 

The  severity  of  different  punishments  declared 120 

The  sixth  section  of  the  confiscation  act  of  1862  is  not  within  the  pro- 
hibition of  the  constitution,  Art.  III.  Sect.  1,  Cl.  3 121 

Treason  and  confiscation  laws  in  1862 :  their  practical  operation., 124 

Legal  rights  of  persons  accused  of  treason 124 

Will  secessionists  indict  and  convict  each  other  ? 125 

How  the  juries  are  selected,  and  their  powers 125 

State  rights  and  secession  doctrines  in  the  jury  room - 126 

Laws  are  most  effective  which  require  no  rebel  to  administer  them 127 

Statutes  of  limitation  will  protect  traitors 128 


CHAPTER   VIII. 

Party  platforms  cannot  alter  the  constitution 129 

Domestic  institutions. 130 

What  they  are,  and  when  they  cease  to  be  so 130 

SLAVERY  —  Congress  may  interfere  to  protect  it 131 

"                 "        may  interfere  against  it  by  militia  laws 132 

"  "        may  interfere  with  slavery  in  the  States  by  cutting 

off  the  supply  of  slaves  to  such  States 132 

"  "        may  interfere  by  laws  preventing  commerce  in 

slaves  between  the  States 132 

"                 "        may  interfere  by  treaty-making  power 132 

"          question  as  to  indemnity 133 

"           congress  may  interfere  for  suppression  of  rebellion 135 

"                 "        may  interfere  to  secure  domestic  tranquillity. ...  136 

CONSTITUTION  —  authoritative  construction  of 136 

"              opinions  of  the  Supreme  Court  upon 137 

"                     "        of  the  framers  of  the  constitution 137 

M              gives  all  powers  necessary  to  public  welfare  and  com- 
mon defence 138 


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